General Terms and Conditions

General Terms and Conditions of Sale and Supply of Dr. Schulze GmbH

Version 04/2018

1. Bases of the contract

1. All our goods and services, including consultancy services are rendered by us solely on the basis of these General Terms and Conditions of Sale and Supply. If the Customer has terms and conditions of business which differ from our own, they shall only apply if we have expressly recognised them in writing. They shall not apply even if we have not objected to them in a given instance.
2. Our terms and conditions of sale and supply shall also apply for future contracts with the Customer if he has not expressly objected to them.

2. Offer / Concluding a contract

1. Our offers shall remain subject to change without notice. Our offers shall only be binding in those cases in which we have made them without reservations and submitted them in writing. Orders amending or supplementing binding offers as well as offers placed with us without us having submitted an offer shall be subject to written confirmation.
2. Contracts to be carried out by us shall be based upon the agreed drawings, specimens, descriptions and similar documents. The DIN or EN standards applicable in each case shall apply. This reference to standards, as well as references by us to material specification sheets, works tests, technical delivery regulations etc. shall not constitute any guarantee of quality. Public statements made by us, our employees or by any manufacturers who may be involved about the quality of the goods may only substantiate rights in response to quality defects if they have expressly been made about a component of a quality agreement.  
3. We shall reserve the right to carry out amendments to the design / form or materials at any time, provided that the goods are not modified to a considerable extent and their suitability for the use assumed in the contract or normal use is not impaired and the Customer can be expected to accept the modification as being reasonable. We shall not however be obliged as a result thereof to carry out such modifications to products already supplied.
4. Our price lists shall be subject to change without notice and non-binding. Mistakes, printing and pricing errors shall be excepted. Dimensions, weights, images and drawings as well as the information and images included in leaflets, catalogues and out internet web sites shall only be binding if this has been expressly agreed in writing.
5. Moreover, the quality of the goods shall only be determined by the agreed technical supply regulations or, if no agreement has been made thereto, in accordance with the quality and finish normal within the trade taking into account the tolerances normal within the trade due to manufacturing conditions. If we have to supply in accordance with the specifications, guidelines specimens etc. supplied by our Customer, he shall bear the risk of the goods supplied being suitable for the intended use. The point in time at which is passed over shall be crucial for determining whether the goods are in a condition compatible with the contract. Given this, we shall only be liable for the processing being carried out in a professional manner.  
6. By placing an order the Customer is making a binding statement that he intends to purchase the goods ordered. We shall be entitled to accept the offer to enter into a contract inherent in the order within two weeks from receipt of the order by us. We may declare acceptance of the offer either in writing or by delivering the goods to the Customer.
7. If the Customer refuses to accept the goods – even after a reasonable supplementary period of time he has been set to do so has elapsed – justly or has expressly stated beforehand that he did not intend to accept the goods, we may withdraw from the contract and demand compensation for damages on account of non-fulfilment. Irrespective of the opportunity to prove that the losses actually suffered were higher, and to claim such higher losses, we shall in this case be entitled to demand that the Customer pays 20 % of the net value of the goods plus all the freight charges actually incurred by us as compensation for damages. The Customer shall reserve the right to prove that the losses suffered by us were lower than the lump sum claimed in damages or that we have not suffered any damages or that the damages suffered by us are significantly lower than the lump sum claimed by us for damages.
This regulation shall apply accordingly insofar as the Customer withdraws from the contract without justification.
8. Provided that the Customer places an order electronically, the text of the contract shall be saved by us and sent to the Customer by e-mail upon request.

3. Prices

1. The prices shall be quoted ex works plus the rate of VAT in force at that time, but will not, however, include packing, freight, insurance and customs’ duty.
2. We shall not increase our prices provided that the items upon which the agreement has been based are not modified and may be rendered without hindrances for which the Customer is responsible. Subsequent additions and modifications leading to an increase in time taken by us or additional expense for materials etc. shall also have to be paid by the Customer in addition to the price already agreed. 

4. Payments / Default in payment

1. The amount invoiced shall be payable immediately. Discounts will not be granted for prompt payment.
2. Periods of time agreed for payment shall only have been observed if we are able to dispose of the amount to be paid by the date on which payment is due.
3. Drafts and cheques shall only be accepted by us by special arrangement as a conditional payment. Charges or other costs arising with the submission of a cheque or draft shall be for the Customer’s account.
4. In the event that there is a default in payment, we shall be entitled to charge default interest amounting to 9 % above the base rate at that time (Section 288 of the German Civil Code [BGB]). We shall reserve the right to prove that the loss suffered by us as a result of the default is higher and to claim this higher loss. In particular we shall reserve the right to also claim those costs we incur if after payment is in default we have to call in third parties to protect our rights.
5. If there is a significant deterioration in the financial status of the Customer, we shall be entitled to only supply our goods and services if payment is made in advance or on delivery or make them dependent upon a security being furnished. Accounts receivable we have for services already rendered shall in this case be payable immediately. This shall apply in particular if payments subsequently due after there is a default in payment are not paid despite a reasonable period of time having elapsed or if an application is made for insolvency proceedings to be opened. If the Customer fails to fulfill our request to furnish a security within a reasonable period of time defined by us, we shall be entitled to withdraw from the contract.
6. Prices may be amended if more than 4 months elapse between the contract being signed and an agreed delivery date (even if part deliveries are made and down payments are made). If there is an increase in wages, the cost of materials changes thereafter prior to the consignment being manufactured, we shall consequently be entitled to amend the price accordingly to reflect the increases in costs. The Customer shall only be entitled to withdraw from the contract if the price increase exceeds the increase in the general cost of living between the date on which the order was placed and delivery by a significant amount.
7. If the Customer is a registered trader, a legal entity under public law or a public law special fund, price changes are allowed in accordance with the above regulation, if more than six weeks elapse between the contract being entered into and the agreed delivery date.

5. Offsetting / Right to withhold performance / Assignment

1. The Customer may only exercise a right to withhold performance if his counter-claim is based upon the same contractual relationship.
2. The Customer shall only have a right to offset if his counter-claims have been adjudicated or have been recognised by us.
3. Claims against us may only be assigned by the Customer to third parties and he may only allow third parties to collect them with our prior written consent, unless they are accounts which are not contested, ready for judgment or have been adjudicated.

6. Delivery period / Performance period

1. The delivery period quoted by us shall only be binding if it is expressly designated as being such and confirmed by us in writing. It shall begin when the order confirmation is sent out by us but not, however, before any documents, licences, clearances which may have to be obtained by the Customer have been supplied to us together with any down payment agreed.If subsequent technical ambiguities or defects should arise in the Customer’s order documents or drawings, or if amendments are agreed subsequently, the delivery period shall start all over again after they have been clarified / rectified.
2. Part-deliveries are allowed within the delivery periods quoted by us provided that no disadvantages accrue to the Customer with regard to their use.
3. A contract shall be entered into subject to the reservation that we have been supplied with the correct goods and on time by our supplier. This shall only apply in the event that our failure to supply our Customer is not attributable to us, in particular if we have entered into a congruent covering transaction with our supplier.
4. Periods and deadlines shall have been observed by us if the delivery consignment has left our works before the period or deadline has expired or if we have notified the Customer that the consignment is ready for collection / dispatch. If acceptance has been agreed or provided for by law, delivery and performance periods shall refer to the point in time of acceptance.
5. If non-compliance of delivery and performance periods attributable to the occurrence of unforeseen hindrances, which are beyond our control, and for which we are not responsible, these periods shall be extended as appropriate by at least the duration of the hindrance or disruption. This shall apply in instances of force majeure as well as for strikes, lock-outs, official instructions even if such circumstances affect our suppliers and sub-contractors, provided that they have a considerable impact upon the goods and services to be rendered by us being carried out. If the disruptions last longer than eight uninterrupted weeks, each Party to the contract shall be entitled to withdraw from part of or all of the contract. 
6. If we nevertheless find ourselves in default, the Customer shall have to grant us a reasonable subsequent period of time. As long as this subsequent period of time does not lapse unsuccessfully or was dispensable for other reasons provided for by law, the Customer may not procure the goods or services elsewhere and he may not withdraw from the contract.

7. Packing / Dispatch / Passing of risk

1. Packing shall become the Customer’s property and will be invoiced by us. Postage and packing charges will be invoiced separately. The method of dispatch shall be selected at our equitable discretion. Insurance policies against damage in transit shall only be taken out at the Customer’s request and expense.
2. Directly prior to delivering our goods we shall announce the delivery day. We cannot furnish any guarantee for the time at which a consignment will be delivered to the building site.
3. Provided that no other written agreement is made, the terms of delivery shall be EXW (Incoterms 2010). This shall also apply for consignments for which delivery has been prepaid. If goods are damaged in transit, the Customer shall have to inform the haulier / freight forwarder straight away following receipt of the goods without culpable delay and notify us.
4. If the Customer is in default with taking delivery of the goods this shall nevertheless still constitute hand-over.

8. Consignment Store

1. In the event that we deliver the goods to be supplied to the Customer to a consignment store, we shall grant the Customer the right to withdraw the goods. The precondition for this is that the Customer provides a room meeting the requirements for storing the goods for the duration of the consignment in which the goods may be properly and professionally stored free of charge. The Customer shall undertake to mark the consignment goods supplied as such and as our property.
2. The consignment store stocks are to be insured by the Customer so that an adequate level of insurance cover is taken out for them against fire, water damage plus break-ins and theft.
3. After an appointment has been agreed in advance the Customer shall grant us access during his normal hours of business to the storage area in which the consignment goods are stored. Moreover, he shall undertake to carry out a stock-take at least once a year upon request and forward us the result in writing straight away. The Customer shall bear the costs of the stock-take.
4. The consignment goods shall remain our property. The Customer shall provide us with a list of goods withdrawn from the consignment store when making withdrawals on a date still to be stipulated (Consumption report). This consumption report shall serve as the basis for the invoice then to be raised by us, dated on the day that we receive the consumption report. 
5. Provided that no regulation is agreed otherwise, each Party to the contract shall be entitled to terminate the consignment store agreement by observing a notice period of three calendar months to the end of a calendar quarter.
6. At the end of the term of the contract the Customer shall return the goods still in the consignment store to the supplier. The transport costs incurred when closing down the consignment store shall be borne by the Customer.

9. Copyrights

1. We shall reserve the exclusive title and copyright to all diagrams, drawings, calculations, specimens or other documents handed over by us. This shall also apply for documents forwarded in electronic format. Such items may only be passed on to third parties with our prior express written consent.

10. Notification of defects / Period of limitation

1. The Customer shall have to inspect goods supplied by us straight away following delivery as part of his normal course of business and notify us in writing straight away after delivery in writing of any defects identified. We expressly point out that any transport damage there may be must be notified to the freight forwarder concerned straight away after it has been identified when the goods have been received. Non-compliance with this requirement will result in any liability claims the Customer may have against our firm being inadmissible.
We are to be allowed an opportunity to rectify the notified defects. Upon request, goods about which a complaint has been made are to be returned to us straight away. If the Customer fails to fulfil this obligation or modifies the goods about which he has already lodged a complaint without our consent, he shall forfeit any claims to which he may be entitled for quality defects.
2. If a notified defect is justified, we shall render a cure as we choose, either by supplying a replacement or by carrying out a repair or manufacturing a new thing. The Customer shall have to allow us a reasonable period of time for a cure provided that this is not dispensable for legal reasons. If we fail to effect a cure within a reasonable period of time or if it is unsuccessful, the Customer shall be entitled to demand a reduction in the remuneration to be paid to us or if our breach of duty is not simply minor, he shall be entitled to withdraw from the contract. If only parts of the delivery are defective, the Customer’s other rights shall only apply to the defective part of the delivery unless the defective part of the delivery is of no interest to him. 
For quality defects arising as a result of unsuitable or improper use, faulty assembly or start-up by the Customer or third party, normal wear and tear, incorrect or negligent handling, we shall not be responsible in the same way that we would not be responsible for the consequences of unprofessional modifications or modifications or repair work carried out by the Customer of third parties without our consent. The same shall apply for defects only reducing the value or fitness of the goods for use to a minor extent.
3. Increased expenditure resulting from the costs of transport, labour and materials incurred as a result of rendering a cure shall not be paid by us provided that the reason for them is that the goods supplied have been moved to a location other than the place of fulfilment, unless they have been moved for their intended use.
4. No further claims asserted by the Customer on account of defects will be recognised and can only qualify for compensation within the scope of liability in accordance with Number 11. The Customer shall not receive any guarantees from us. Any manufacturer product warranties shall not be affected by this. 
5. The period of limitation for claims based on quality defects shall be twelve months, unless the law prescribes longer periods in accordance with Section 438 Para. 1 No 2 BGB (Delivery of things for construction purposes), Section 479 Para 1 BGB (Right of recourse when purchasing consumer goods) and Section 634 a Para 1 No 2 BGB (Construction defects). The statutory period of limitation shall also apply for cases of death, personal injury of physical harm, for an intentional breach of duty or breach of duty caused as a result of gross negligence and malicious non-disclosure of defects.

11. Liability

1. If the item supplied cannot be used by the Customer in accordance with the contract as a result of a breach of contractual ancillary duties culpably caused by us, such as for example, failure to pass on, or passing on incorrect, advice, information, suggestions etc. either prior to or after the contract was signed, we shall, with the exclusion of further claims, consequently be liable only in accordance with the regulations in Number 10 and as follows:
2. We shall only be liable for damages not incurred on the item supplied itself – regardless of whatever reasons upon which such claims are based – in the event of intent, gross negligence on the part of the owner / executive bodies or senior staff of Dr. Schulze GmbH, or in the event of death, personal injury or physical harm, and for defects which we have maliciously concealed if we have promised a guarantee, as well as for defects on the item supplied provided that we can be held liable under the German Product Liability Act for personal injury of property damage to privately used items.
3. If there is a culpable breach of important contractual duties, i.e. contractual duties the fulfilment of which makes the proper execution of the contract possible at all in the first place, and upon compliance with which the Customer normally relies or may rely, we shall only be liable even in the event of gross negligence on the part of non-senior staff and in the event of ordinary negligence, limited in the latter case to those damages typical for the contract which we foresee or should have been able to foresee on the basis of the circumstances and facts to which we had access when we signed the contract.
4. No further claims of the Customer shall be recognised.
5. Our liability for indirect damages, consequential damages such as, for example, downtime, lost profit, production shortfall, shall not be recognised.
6. This limitation of liability shall however not apply in those cases in Number 2 above if there is a culpable breach of important contractual duties. The exclusion of liability and /or limitation of liability in accordance with the above regulations shall also apply for the personal liability of our employees and assistants.

12. Reservations of title

1. We shall reserve the title to the goods until all our accounts in a continual business relationship have been settled in full, regardless of the legal reason on which they materialised. In a current account arrangement the reservation of title shall apply as a security for our respective balance of account. This shall also apply if payments made by the Customer are paid towards specific accounts.
The Customer shall be obliged to handle the goods with care. Provided that maintenance and inspection work is necessary, the Customer shall have to carry this out on a regular basis at his own expense.
2. Processing or transformation of the goods subject to reservation of title shall always be carried out for us as the manufacturer, without any obligation accruing to us herefrom. If the goods subject to reservation of title are processed or transformed together with other goods not supplied by us, we shall be entitled to co-ownership of the new thing in proportion to the value of the goods subject to reservation of title to the value of the other processed or transformed goods at the point in time of processing or transformation.
In the event that our title to the goods subject to reservation of title expires as a result of them being combined or mixed with other goods not supplied by us, the Customer shall hereby transfer to us here and now his (co)-ownership rights to the new thing or to the mixed stock for the invoiced value of the goods subject to reservation of title and keep this in safekeeping for us. The new thing created as a result of processing, transformation, combining or mixing (hereinafter known as "new thing") and the (co)-ownership rights of the new thing to be transferred to us in accordance with No 2 of this number shall likewise serve as a security for our account as the goods subject to reservation of title themselves in accordance with Number 1. Provided that there is nothing stated otherwise in the following provision of this number, it shall apply to the new thing accordingly. 
3. The Customer may only sell the goods subject to reservation of title in a proper commercial transaction at normal terms and conditions of business and only as long as he fulfils his payment obligations to us on time. For his part, the Customer is obliged to only sell on the goods subject to our reservation of title and subject to his reservation of title as well and to ensure that the account created by such sales transactions can be transferred to us.
4. The Customer’s account created by the resale of the goods subject to a reservation of title is assigned to us here and now. We accept the assignment. The account shall serve as a security to the same extent as the goods subject to reservation of title.  If the Customer sells the goods subject to reservation of title together with other goods not supplied by us, the assignment of the account shall consequently only apply for the amount invoiced for the resale of the goods subject to reservation of title. If the goods are sold in accordance with Number 2, or the statutory regulations on combining and mixing the thing to which we have co-ownership, the assignment of the account shall apply for the amount of our co-ownership share. 
5. If the Customer enters accounts created by the resale of the goods subject to reservation of title into a current account arrangement existing with his buyers, he shall consequently assign to us a recognised balance of account produced in his favour here and now for the amount equal to the total amount of the claim entered in the current account arrangement for the resale of our goods subject to reservation of title.
Given this, the above sub-section shall apply accordingly.
6. The Customer is authorised to collect the account from the resale of the goods subject to reservation of title assigned to us. The Customer is not allowed to assign the account created by the resale, even as part of a true factoring contract.
7. We may revoke the Customer’s collection authorisation at any time if he is in default with, or stops making, his payments to us, his business is passed over to a third party, if the credit rating or level of trust in the Customer’s business drops or if his business is wound up as well as in instances in which the Customer is in breach of his contractual obligations in accordance with Number 3 of this section. In this event the Customer shall be obliged to inform his buyers of accounts that have been assigned by him to us straight away and to hand over to us all the information and documents necessary for us to collect the accounts. Besides which, he shall in this case be obliged to hand over or transfer to us any securities to which he may be entitled for his accounts.
8. If the marketable value of the securities existing for us should exceed our secured accounts by more than 10%, we shall consequently, at the Customer’s request, given this, be obliged to release securities at our choice.
9. The Customer shall be obliged to inform us straight away if a levy of execution or other actual impairment of the goods subject to reservation of title has taken place or if such goods or the other securities existing for us are in jeopardy.
The Customer shall undertake to take out adequate insurance cover against fire and theft for the goods subject to reservation of title. He shall assign his claims under the insurance policies to us right here and now.
10. If the Customer’s conduct is in breach of contract, in particular if he is in default with payment or if he is in breach of a duty under this paragraph, we shall be entitled to withdraw from the contract and to demand that the goods subject to reservation of title are handed over to us. In this case the Customer shall declare his consent here and now  that he will allow us to take away or to have taken away the goods subject to reservation of title in his possession and – provided that we are the sole owner – the new thing within the meaning of Number 2 of this paragraph. The Customer shall have to grant us or persons granted by us access at any time to carry out the above measures as well as to conduct a general inspection of the goods subject to reservation of title and / or the new thing.

13. Place of fulfilment / Place of jurisdiction / Applicable law

1. The law of the Federal Republic of Germany shall apply.
The provisions of the UN CISG shall not apply. The exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be 57072 Siegen if the Customer is a registered trader or legal entity under public law or a public-law special fund. We shall also be entitled to sue the Customer at the courts having jurisdiction where his principal place of business is located. This shall also apply if the Customer does not have any general place of jurisdiction in Germany or his place of residence or normal whereabouts at the point in time at which legal action is taken are unknown.
2. The place of fulfilment is 57234 Wilnsdorf.
3. Should individual provisions of the contract with the Customer including these General Terms and Conditions of Business, be or become partially or completely invalid, the validity of the remaining provisions shall not be affected as a result. The regulation partially or completely invalid is to be replaced with a regulation whose economic success comes as close as possible to that of the invalid regulation. The transfer of the Customer’s rights and duties under the contract entered into with us shall be subject to our written consent to be valid.
4. We expressly point out that the Customer’s data or of third parties involved will be saved and processed on a computer provided that this is necessary for the contractual relationship to be handled properly.