General Terms of Delivery and Sales - SCHMIDT Technology Corporation

Preamble

Our deliveries and services shall be carried out exclusively based on the following terms, also in the future, even if we do not specifically refer to them in individual cases. Their validity can only be fully or partially excluded through explicit written agreement at the conclusion of the individual transaction. General terms and conditions, in particular the customer’s purchasing terms shall not apply to our deliveries and services. They shall not be binding to us, even if we do not specifically oppose them in individual cases; we oppose them herewith. Our general terms of delivery and sales shall be deemed accepted at the latest upon receipt of the goods or services.

I. Extent Of The Obligation To Deliver

Our offers are subject to change without notice, even if given in response to a customer’s enquiry. A legally binding relationship with the customer shall generally only exist if we have confirmed the order in writing, which may also take place via telegram, fax or computer-written without a signature; the same applies to amendments or supplements to contracts.
Our written order confirmation shall be authoritative regarding the scope, type and time of the delivery.
We reserve the right to alter designs. Our catalogues are being constantly revised. Illustrations and diagrams in our catalogues are not binding and not part of the agreed quality. They shall neither substantiate a guarantee of durability nor of quality.
The documents belonging to the offer such as drawings, data sheets, illustrations, plans etc. are only approximately authoritative unless explicitly described as binding. The documents shall remain our property; we reserve all rights to them. They may not be made accessible to third parties without our written agreement and must be returned to us immediately at any time upon demand.
Blanket orders must be called and accepted in good time and in the agreed quantities. We may demand binding agreement of duration, manufacture batch sizes and delivery deadlines within 3 months of order confirmation in the case of blanket orders where these details have not been agreed. If the customer does not meet this demand within 3 weeks we shall be entitled to set a two-week period of grace and, after this period has expired without results, to withdraw from the contract or refuse to deliver and claim damages.
If the contract quantity is exceeded by the individual calls, we shall be entitled but not bound to deliver the excess. We may charge for the excess at the prices valid at the time of calling or delivery.

II. Price

Prices are always in euros. The statutory turnover tax shall be charged additionally at the respectively applicable level.
Prices apply to domestic deliveries uninsured ex works and excluding packaging; deliveries abroad free German border or FOB German air or sea port, including export packaging and transportation insurance.
Surcharges and additional charges on top of the agreed fees shall be permitted if circumstances such as increases in material costs, wages or energy costs, increases in public charges etc. force us to do this and the delivery or service is to take place later than 4 months after the conclusion of a contract. In the case of other increases in price, the customer shall have the right of rescission if the list price has increased considerably more than the general cost of living. Deliveries of follow-up orders which took place after the date of a price change shall be charged at the new prices without the customer having the right of rescission.

III. Delivery

The delivery period shall begin when the order confirmation is sent, however not before all the details of the execution of the order have been clarified or before any agreed advance payment or supply of materials has been received. The delivery period has been observed if the object of delivery has been dispatched or collected before expiry of the delivery period or the customer has been informed that the goods are ready for dispatch, if shipment has not taken place without it being our fault.
Force majeure and other events we are not responsible for which may jeopardise the smooth processing of the order, in particular delays in delivery on the part of our suppliers, transport problems and production breakdowns, industrial disputes, shortage of materials or energy, shall entitle us to fully or partially withdraw from the contract or postpone delivery without the customer accruing claims for damage. The customer may demand a declaration of whether we wish to withdraw or fulfil the contract within a reasonable period. If we do not specify, the customer may withdraw from the contract.
The previously described events or circumstances are not our responsibility even if they occur during an already existing delay in delivery.
In the case of a delay in delivery which we are responsible for, an appropriate period of grace shall be granted to us. After this period has expired, the customer may demand compensation and/or withdraw from the contract if the goods have not been reported ready for dispatch or delivered by the expiry of the period. A right of rescission does not exist if the delay in delivery, i.e. the delivery period being exceeded, is beyond our control.
The customer is only entitled to compensation instead of performance if the cause of damage results from intent or gross negligence on our part. This does not apply if the transaction is due for delivery by a fixed date.
Delivery obligations and deadlines shall be suspended if the customer is in default with acceptance of goods or other obligations without our rights being affected by the customer’s default or if the customer has exceeded the credit limit allowed by us. In this case the risk of loss or deterioration of the goods sold shall pass to the customer at the time the customer defaults.
The originally agreed delivery deadline shall be cancelled if an alteration of the order takes place with our written approval.
Appropriate part deliveries and deviations (max. +/- 10 %) from the order quantities are permissible as long as these are reasonable for the customer, taking into account the customer’s interests.
Weight and number of the delivered goods as determined by us are decisive for invoicing.

IV. Dispatch

Dispatch shall generally take place at the customer’s expense and risk from a place determined by us.
Packaging, mode and route of dispatch shall be chosen by us at our complete discretion if the customer has not expressed any particular wishes. Additional expenses for special requests shall be borne by the customer. We shall take no responsibility for the cheapest shipping method.
If dispatch or delivery is delayed at the customer’s request we may charge for storage at 0.5 % of the invoice amount for every new month, starting from one month after notification that goods are ready for dispatch. Storage costs shall be limited to 5 % of the invoice amount unless we can prove greater expenses.
We are entitled to set the customer an appropriate time limit for acceptance and after expiry of such without result to demand immediate acceptance and compensation for damages caused by default.

V. Terms of Payment

The terms stated in our order confirmation shall apply to payment; payment for domestic deliveries must generally be effected within 14 days after the invoice date with 2% cash discount or within 30 days without discount. Additional services such as printed documents, tools, work performed etc. must be paid without discount immediately after receipt of the invoice. Payments for deliveries abroad must generally take place via irrevocable confirmed letter of credit.
Cheques shall only be accepted with the usual proviso, bills of exchange only after special agreement. Discounting charges shall be borne by the customer. They must be paid to us on negotiation of the bill of exchange. In all cases, the day of payment is the day on which the amount paid is at our disposal.
If payments are deferred or effected later than agreed, interest at 8% above the applicable base rate of the European Central Bank shall be charged, without requiring a reminder. We reserve the right to assert further damages for default. The customer is entitled to prove lower damages for default.
The customer is not entitled to set off with counterclaims unless the customer’s demands are recognised by us, undisputed or established finally and absolutely. The customer has no right of retention as a result of contested counterclaims.
All our receivables shall become due immediately independent of the duration of any accepted and credited bills of exchange if the terms of payment are not complied with or circumstances become known, which are capable of reducing the credit rating of the customer. In this case we shall also be entitled to only carry out outstanding deliveries against prepayment or security deposit or to withdraw from the contract and/or demand compensation in place of performance after an appropriate period of grace. In addition we may also prohibit reselling and processing of the delivered goods and demand their return or assignment of possession of the delivered goods at the customer’s expense and revoke the authorisation to collect according to section IX. 7. The customer shall authorise us now to enter its premises and remove the delivered goods in the cases stated.
Payments are generally charged against the oldest valid invoice. As long as an older invoice is outstanding, the customer is not entitled to claim a cash discount on payment of later invoices.

VI. Complaints and Notification of Defects

We must be immediately informed of complaints due to incomplete or incorrect delivery or recognisable defects in writing, however at the latest within 2 weeks of receipt of the goods. We must be informed of other defects immediately, however at the latest within 2 weeks of discovery. Guarantee claims are excluded if complaints or notifications of defects are not made in due time. If notification is made in due time we are committed to give a guarantee according to section VII.
In the case of damage to goods in transit, the customer must provide us with a damage report from the railway or post office or from the carrier.
Defects in parts of the delivered goods do not entitle the customer to complain about the entire delivery, unless a part delivery is of no interest to the customer.

VII. Guarantee

In the case of defects in the delivery items we are entitled at our choice to remove the defect or deliver a replacement within a guarantee period of 12 months. This shall not apply if the law prescribes obligatory longer periods. In the case of removing a defect we are committed to bear all expenses for the purpose of removing the defect, in particular transport, labour and material expenses, as long as these are not increased by the fact that the delivery items have been taken to somewhere other than the place of delivery.
The customer shall grant us sufficient time and opportunity to eliminate the defect at our discretion. Replaced parts pass into our possession.
If the elimination of the defect is unsuccessful, we let an appropriate period of grace granted to us expire without delivering again or eliminating the defect, or if elimination of the defect is impossible or we refuse to carry it out, the customer has the right of rescission or a price reduction. The same applies if we are not able to eliminate the defect.
The guarantee does not apply to defects and/or damages due to natural wear and tear, neither does it apply to defects or damages caused by incorrect or negligent handling, excessive stress, unsuitable use, incorrect operation etc and such influences which are not provided for in the contract, as long as the damages are not our responsibility.
The claim to a guarantee may not be passed on to a third party without our agreement.
If improper alterations and repair work have been carried out on the delivery items by the customer or a third party, we are not responsible for any resulting defects.
For items produced mainly outside the company our guarantee is limited to assigning the guarantee claims which we are entitled to against the supplier of these items, unless the satisfaction from the assigned claim is unsuccessful or the assigned claim cannot be enforced due to other reasons.
Further claims by the customer regardless of the legal reasons against us shall be excluded unless otherwise stated in the following, in particular claims to compensation for damages which are not created or exist directly in the delivered goods (e.g. lost profits, consequential damage, other pecuniary losses); this release from liability shall not apply if we are statutorily liable due to intent, gross negligence or a promise of guarantee, or if a fundamental contractual obligation has been violated, likewise in the case of bodily harm.In the case of negligent but not grossly negligent violation, our liability shall be limited to replacement of the typical, predictable damage.
The above provisions shall apply correspondingly to delivery of other goods than stated in the contract.

VIII. Liability, Limitation

The exclusion and limitation of our liability for damages as stated in section VII.8. shall apply correspondingly to all cases of our liability for damages due to violation of duties as a result of legal obligations and similar and as a result of tort. This shall not affect claims according to articles 1, 4 of the Product Liability Act as well as claims due to impediments to performance at the conclusion of a contract or when it is impossible to perform due to circumstances under our control. This release from liability shall not apply if we are obligatorily liable due to intent, gross negligence or a promise of guarantee, or if a fundamental contractual obligation has been violated, likewise in the case of injury to life and health.
If our liability for damages is excluded or limited, this shall also apply to the personal liability of our executive bodies and employees as well as vicarious agents.
The claims of the customer stated in paragraph I are subject to a limitation period of 24 months, calculated from the end of the year in which the risk is passed. If the statutory limitation period is shorter than 24 months this period shall apply to the relevant claims of the customer. Shortening the limitation period does not apply to claims in tort or product liability claims.
The statutory regulations regarding burden of proof remain unaffected.

IV. Reservation of Title

All delivered goods shall remain our property (reserved goods) until all receivables have been paid, in particular also the respective balance payments which we are entitled to from the customer as a result of the business relation. This shall also apply if payments are effected for specifically designated receivables.
If reserved goods are combined and mixed with other goods by the customer, we shall be entitled to co-ownership in the new object in proportion of the invoice value of the reserved goods to the invoice value of the other goods used. If our property ceases through combination, the customer shall already now assign ownership in the new object to us to the extent of the invoice value of the reserved goods and shall hold this object in safe custody for us free of charge. The co-ownership rights arising hereunder shall be considered reserved goods according to paragraph I. We shall accept the assignment.
The customer may only sell the reserved goods in the ordinary course of business under the customer’s terms and conditions if they include a complete reservation of title according to these provisions and provided the customer is not in default, on the condition that the receivables from the resale according to paragraphs 4 and 6 are assigned to us. The customer shall not be entitled to dispose of the reserved goods in any other way, in particular the authorisation to dispose of the reserved goods shall be automatically revoked if insolvency proceedings are applied for or liquidation commenced regarding the assets of the customer.
The receivables of the customer from the resale of the reserved goods shall already be assigned to us now. They serve as a security to the same extent as the reserved goods. We hereby accept the assignment.
If the reserved goods are sold by the customer jointly with other goods not sold by us, the assignment of the receivables from the resale shall only apply to the value of our invoice for the respective reserved goods sold. If goods are sold in which we have co-ownership according to paragraph 2., assignment shall apply to the value of these co-ownership shares.
If the reserved goods are used by the customer to fulfil a contract for work and sales or for work and materials, paragraphs 4. and 5. from this contract shall apply correspondingly to the receivables.
The customer is entitled to collect receivables due from the sales according to paragraphs 3., 5. and 6. until revoked by us, which is admissible at any time. We shall only exercise our right to revocation in the cases in paragraph 3. and article V.5. The customer is under no circumstances authorised to any other assignment of the receivables. At our request the customer is obliged to inform its clients of the assignment to us immediately – provided we do not do this ourselves – and to provide us with the information and documents necessary for collection. The customer is not permitted to pledge or chattel-mortgage the reserved goods.
Our reservation of title is conditional in such a way that when all receivables have been paid the ownership in the reserved goods automatically passes to the customer and the customer is entitled to the assigned receivables without restriction. If the value of the existing securities exceeds the secured receivables by more than 20%, we are obliged to release securities of our choice at the customer’s request. The realisable value of the securities is authoritative as their security value for the purposes of valuation.
The customer must notify us immediately of any pledge or other threat to or interference with our ownership rights and rights to receivables by a third party by providing us with the pledge protocols or other documents and must do everything possible to protect our rights.
We shall be entitled to enter the customer’s warehouse and business premises at any time in order to remove, set aside or mark the reserved goods. At our request the customer must give us all relevant information concerning the reserved goods and hand over all necessary records. The consumer shall be obliged to comprehensively insure the reserved goods for our benefit at the customer’s expense and prove this insurance on request. The customer hereby assigns all resulting insurance claims to us; we accept the assignment.
The enforcement of our reservation of title is not deemed a rescission from the contract. The customer’s right to possession of the reserved goods shall expire if the customer does not fulfil its duties under this or another contract. We shall then be entitled to take possession of the reserved goods and realise them at the best possible price through private sale or in auction without affecting the payment or other obligations of the customer to us. The proceeds of the realisation shall be offset with the customer’s liabilities after deduction of the expenses. Any surplus shall be paid to the customer.
If the reservation of title or assignment is not effective according to the law in the area where the goods are located, the security corresponding to the reservation of title or to the assignment in this area shall be deemed agreed. If the co-operation of the customer is required here, the customer must take all actions necessary for establishing and preserving these laws.

X. Tools

Tools, moulds, equipment etc – hereinafter referred to as “tools” – shall be generally our property, even if the customer has paid for them fully or partially. This shall apply irrespective of whether the tools were manufactured by us or by commissioned third parties.
We undertake not to manufacture any parts for third parties using tools for which the customer has paid the entire cost, providing the customer supplies us with follow-up orders. This obligation expires without a claim for reimbursement of any type against us arising for the customer if we do not receive further orders within two years after the last order.
We shall store the tools in good condition free of charge. We shall bear the costs of maintenance and repairs. Our obligation to store the tools shall come to an end after expiry of the two-year period stated in paragraph 2.
The provisions above (paragraph 1 – 3) shall not apply to tools for common and generally usable items.

XI. Other Terms

The place of performance and jurisdiction for both parties under the agreement is St. Georgen, Germany, also for procedures deciding claims arising from bills of exchange and cheques. We are also entitled to file complaints against the customer at the customer’s general place of jurisdiction.
Only the law of the Federal Republic of Germany is valid for all legal relationships between the customer and us. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
If individual provisions of these terms and provisions of the contract are or become ineffective, the effectiveness of the remaining provisions is not affected. The ineffective provisions should be amended so that their intended legal and economic purpose is achieved. The same applies if a loophole appears in the contract during execution which requires filling. The contracting parties are committed to immediately replace the ineffective provisions with legally effective provisions or fill the loophole in the contract.
The above terms of delivery apply equally to deliveries and services, even if this is not explicitly stated in individual cases.
The customer’s data shall be stored by us within the purpose of this contractual relationship.