General Terms and Conditions
Information as required by Section 5 TMG:
Kunststofftechnik SCHEDEL GmbH
Oelsnitzer Straße 55
Tel.: +49 (0) 3745 / 745-0
Fax: +49 (0) 3745 / 745-217
Managing director: Markus Schedel, Oliver Schedel
Register number: HRB 7642, (Register Court Chemnitz)
VAT registration number as referred to in Section 27(a) of the German VAT Act:
DE 133 524 934
Information as required by Section 5 TMG:
SCHEDEL Bad + Design GmbH
Oelsnitzer Straße 55
Tel.: +49 (0) 3745 / 745-0
Fax: +49 (0) 3745 / 745-217
Managing director: Markus Schedel, Wolfgang Schneider
Register number: HRB 21161 (Register Court Chemnitz)
VAT registration number as referred to in Section 27(a) of the German VAT Act:
DE 234 868 951
General terms and conditions of business
Clause 1 – General provisions – Scope of application
(1) Our general terms and conditions shall apply to the exclusion of all others; we do not recognize any terms and conditions of the customer that conflict with or deviate from our general terms and conditions unless we have expressly agreed to their applicability in text form. Our general terms and conditions shall apply even if, in the knowledge of conflicting general terms and conditions or general terms and conditions that deviate from our own, we carry out the delivery to the customer without reservation.
(2) All agreements made between us and the customer in relation to the performance of this contract are laid down in text form. in this contract.
(3) Our general terms and conditions shall apply only with respect to entrepreneurs within the meaning of section 310(1) German Civil Code (Bürgerliches Gesetzbuch – BGB).
(4) These general terms and conditions shall also apply to all future transactions entered into between us and the customer, insofar as they concern related legal transactions.
Clause 2 – Offer – Offer documents
(1) If the order placed by the customer constitutes an offer in accordance with section 145 BGB, we may accept this within a period of 2 weeks. An order may also be accepted by way of transmission of an order confirma-tion or invoice or by way of delivery or shipment of the ordered goods. As a rule, offers made by us are non-binding and merely constitute an invitation to the customer to submit a binding order unless expressly provided otherwise in such “offer”.
(2) We reserve rights of ownership and copyrights in relation to illustrations, drawings, calculations and any other documents. This shall also apply to documents in text form that have been designated as being “confidential”. Any disclosure or transfer to third parties by the customer shall require our prior express consent in text form.
Clause 3 – Prices – terms of payment
(1) Unless indicated otherwise in the order confirmation, our prices apply “ex works”, excluding packaging, freight, customs duties or other charges; these are charged separately.
(2) Statutory VAT is not included in our prices; it is shown separately on the invoice at the statutory rate on the day of the invoice.
(3) We are entitled to assign the claims arising from the business relation-ship, in particular our claims to payment, to third parties.
(4) The deduction of a cash discount shall require a specific agreement in text form.
(5) Unless indicated otherwise in the order confirmation, the net purchase price (without any deduction) shall be due and payable within 14 days from the date of the invoice. Statutory provisions regarding the consequences of payment default shall apply.
(6) In the case of payment default on the part of the customer, statutory provisions shall apply; in particular, we will charge default interest of 8% p.a. above the respective base interest. We reserve the right to claim higher damages for late payment. If we claim higher damages for late payment, the customer has the option of proving to us that the loss caused by the delay did not arise at all or, at least, that it was significantly lower.
(7) The customer shall only be entitled to set off any payment claims if his counterclaims have been upheld and declared unappealable by a court of law, or if such counterclaims are uncontested or have been accepted by us. In addition, the customer shall only be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
Clause 4 – Scope of delivery and delivery time
(1) The delivery time indicated by us shall start to run once all information and documentation required for the execution of the order has been received; once the agreed advance payment, if any, has been received; if agreed, once material has been provided in a timely manner; and once all technical issues have been resolved.
Unless expressly agreed otherwise, the shipping or delivery dates indicated shall merely constitute expected shipping or delivery dates, which are subject to change at short notice.
(2) Compliance with our delivery obligations is further subject to the timely and proper fulfilment of the obligation of the customer. We reserve the right to invoke the “defence of non-performance of the contract” (Einrede des nicht erfüllten Vertrages).
(3) If a customer is in default of acceptance or culpably violates any other obligations to cooperate, we are entitled to claim damages for any damage incurred in this regard, including any additional expenses incurred. We reserve all further claims or rights. The customer shall in turn be entitled to prove that any damage claimed did not arise at all or, at least, that it was significantly lower than claimed.
(4) If the conditions laid down in paragraph 3 have been met, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the time at which the acceptance or payment by the customer is delayed.
(5) We are liable in accordance with statutory provisions, to the extent that the underlying purchase contract constitutes a transaction where time is of the essence (Fixgeschäft) within the meaning of section 286(2) no. 4 BGB or section 376 German Commercial Code (Handelsgesetzbuch – HGB). We are also liable in accordance with statutory provisions if, as a result of a delivery delay for which we are responsible, the customer is entitled to assert that his interest in the continued fulfilment of the contract has ceased.
(6) In addition, we are liable in accordance with statutory provisions if the delay in delivery is caused by an intentional or grossly negligent breach of contract for which we are responsible; any fault on the part of our representatives or any person employed in performing a contractual obligation for whom we are vicariously liable (Erfüllungsgehilfe) shall be attributable to us. If the default in delivery is caused by a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable damage that typically occurs.
(7) We shall also be liable according to statutory provisions if the delivery delay for which we are responsible is caused by a culpable violation of a fundamental contractual obligation; in this case, however, any liability for damages shall be limited to the foreseeable damage that typically occurs.
(8) Any further statutory claims and rights of the customer remain reserved.
Clause 5 – Passing of risk – packaging costs
(1) Unless otherwise indicated in the order confirmation, delivery “ex works” shall be deemed agreed.
(2) Separate agreements shall apply with regard to the return of packaging; in the absence of such separate agreements, statutory provisions shall apply.
(3) If the customer so requires, we will arrange for the delivery to be covered by transport insurance; the costs in this regard shall be borne by the customer.
Clause 6 – Liability for defects
(1) Claims for defects of the customer shall require that the customer has duly met his duties to inspect and give notice of defects according to section 377 HGB.
(2) Only our binding product description shall be relevant with respect to the agreed quality in cases of doubt. Minor deviations in colour or measurements that are reasonable and customary in the trade shall not constitute a defect. References to technical norms shall only serve as a performance specification and shall not be construed as a guarantee of quality. Unless otherwise expressly agreed, the manufacturing of the products shall be carried out using industry-standard materials and in accordance with known production methods.
(3) If the customer receives advice beyond the agreed contractual scope, the company shall be liable for the operability and suitability of the item only following a prior express assurance to this effect.
(4) If there is a defect in the goods or products to be supplied – hereinafter uniformly referred to as “Purchased Item” – then the customer shall be entitled, at his discretion, to demand supplementary performance in the form of rectification of the defect or supply or a new item that is free from any defects. In the case of a rectification of a defect or a replacement we are obliged to bear all costs required for the purpose of supplementary performance, in particular the costs of transport, travel, work and materials, provided that these do not increase due to the fact that the Purchased Item has been taken to a place other than the place of performance.
(5) Should supplementary performance fail, the customer can, at his discretion, choose either withdrawal from the contract or a reduction of the purchase price.
(6) We are liable in accordance with statutory provisions if the customer asserts damages claims that are based on intentional conduct or gross negligence including intentional conduct or gross negligence by our representatives or any person employed in performing a contractual obligation for whom we are vicariously liable (Erfüllungsgehilfe). Insofar as the customer does not assert any intentional breach of contract on our part, our liability is limited to the foreseeable damage that typically occurs.
(7) We are liable in accordance with statutory provisions if we culpably infringe a fundamental contractual obligation; in this case, too, the liability for damages is limited to foreseeable damage that typically occurs. A fundamental contractual obligation exists if the breach of duty relates to a duty on whose performance the customer has relied and was entitled to rely.
(8) If the underlying goods are second-hand goods, claims for defects shall be excluded.
(9) Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the German Product Liability Act (Produkthaftungsgesetz).
(10) Liability shall be excluded unless otherwise agreed above.
(11) The limitation period in relation to claims for defects from the sale of new goods shall be 12 months from the passing of risk.
(12) The limitation period in the case of redress for inadequate delivery according to sections 478, 479 BGB remains unaffected; it amounts to 5 years from delivery of the defective item.
Clause 7 – Total liability
(1) Any additional liability for damages, which goes further than provided for in clause 6, is excluded – regardless of the legal basis of such claim. This applies, in particular, to damages claims due to fault on the occasion of contract conclusion, due to other breaches of duty, or due to claims in tort for compensation for damage to property in accordance with section 823 BGB.
(2) The limitation laid down in paragraph 1 also applies to the extent to which in lieu of damages instead of performance the customer claims compensation for futile expenses.
(3) Insofar as our liability for damages is excluded or limited, this shall also apply to the personal liability for damages of our employees, workers, staff members, representatives and any person employed in performing a contractual obligation for whom we are vicariously liable (Erfüllungsgehilfe).
Clause 8 – Reservation of title
(1) We reserve title to the goods or products to be supplied by us – hereinafter uniformly referred to as “Purchased Item” – until all our payment claims arising from the business relationship have been met. If the customer acts in breach of contract, in particular if the customer defaults on his payment obligations, we are entitled to take back the Purchased Item. Our taking back of the Purchased Item constitutes a withdrawal from the contract. After having taken back the Purchased Item, we are entitled to sell it; the proceeds of sale shall be set off against the amounts owed by the customer – minus appropriate costs of sale.
(2) We are entitled to assert our rights under the reservation of title, in particular to take back the Purchased Item that was delivered subject to a retention of title, without first withdrawing from the respective contract.
(3) The customer is obliged to treat the Purchased Item with due care; the customer is in particular obliged, at his own expense, to insure the Purchased Item sufficiently and at replacement value against damage caused by fire, water and theft. If any maintenance and inspection work is required, the customer shall perform these tasks in good time and at his own expense.
(4) In the event of attachments or other third party interventions, the customer shall immediately notify us in text form to enable us to bring a legal action in accordance with section 771 German Code of Civil Procedure (Zivilprozessordnung – ZPO). If the third party is unable to reimburse us for the judicial and extrajudicial costs of a legal action pursuant to section 771 ZPO, the customer shall be liable for any loss incurred by us.
(5) The customer is entitled to resell the Purchased Item in the ordinary course of business; however, he hereby transfers all claims equivalent to the final invoice amount (including VAT) of our claim to us, which arise from a resale of the goods to his customers or third parties, independently of whether the Purchased Item has been resold after further processing or without processing. The customer shall remain authorised to collect this claim even after it has been assigned. This is without prejudice to our right to collect such claim ourselves. However, we undertake not to collect such claim as long as the customer continues to meet his payment obligations out of the proceeds received, as long as he is not in default of payment and, in particular, as long as no application has been made to start settlement or insolvency proceedings or payments have been suspended. If this is the case, however, we are entitled to demand that the customer notifies us of the assigned claims and their debtors, provides all details necessary for a collection of such claims, hands over the attendant documents and notifies the debtors (third parties) of such assignment.
(6) Any processing or transformation of the Purchased Item by the customer is always deemed to have been made on our behalf. If the Purchased Item is processed together with objects that do not belong to us, we shall acquire joint ownership of the new item at a ratio of the value of the Purchased Item (final invoice amount including VAT) in relation to the other processed items at the time of processing. Apart from that, the same provisions shall apply in relation to items resulting from the processing as those that apply to Purchased Items delivered subject to a retention of title.
(7) If the Purchased Item is inextricably combined with objects that do not belong to us, we shall acquire joint ownership of the new item at a ratio of the value of the Purchased Item (final invoice amount including VAT) in relation to the other combined items at the time of combining. If the combination is such that the customer’s goods are to be regarded as the main item, it shall be deemed to have been agreed that the customer shall transfer proportionate joint ownership to us. The customer shall hold the resulting sole or joint ownership on our behalf.
(8) The customer shall also assign to us any claims for securing our claims against him, which arise against a third party from the combination of the Purchased Item with a piece of real estate.
(9) We undertake, upon the customer’s request, to release the securities to which we are entitled to the extent that the realisable value of our securities exceeds the value of the claims to be secured by more than 20%; we are entitled to select which securities are to be released.
Clause 9 – Provision of material by the customer
(1) If the customer provides any material, this shall be delivered to us at the customer’s cost and risk, together with a reasonable extra quantity of at least 5%, in good time and in perfect quality.
(2) If the aforementioned condition is not met, our delivery time shall be extended by a reasonable period. Except in cases of force majeure, the customer shall bear the extra costs arising from this, including for any disruptions in production.
Clause 10 – Moulds (tools)
(1) The price for moulds shall also include the costs for a one-off sample but not the costs for testing and processing equipment as well as for any changes requested by the customer.
(2) Unless otherwise agreed, we are the owners of and retain ownership in the moulds produced by ourselves on behalf of the customer or by a third party commissioned by us. If expressly agreed, moulds will only be used for orders placed by the customer provided the customer meets his payment and acceptance obligations. Our obligation to store the mould shall expire two years after the last delivery of parts produced using the mould.
(3) If a contract is terminated before the moulds have amortised, we shall have a right to compensation for the remaining amortisation value. We will invoice the customer for such amount.
(4) If, by virtue of an express agreement that conflicts with paragraph 2 above, the customer becomes the owner of the moulds, such title shall only pass to the customer upon full payment of the purchase price for the moulds and all our other claims against the customer arising from the business relationship. The delivery of possession of the moulds to the customer shall be replaced by our storing them on behalf of the customer. Regardless of a legal right to recover possession on the part of the customer and regardless of their lifespan, we are entitled to exclusive possession of the moulds until the termination of the contract.
(5) In the case of the customer’s own moulds in accordance with paragraph 4 above and/or moulds provided by the customer on loan, our liability shall be limited to storage and maintenance at a level of care and attention as we apply to our own affairs.
Maintenance and insurance costs shall be borne by the customer. Our ob-ligations in this regard, in particular our storage obligations, shall cease to apply if the customer fails to collect the moulds within a reasonable period of time after completion of the contract when prompted. In any event, as long as the customer has not fully complied with his contractual obligations, we shall have a retention right in the moulds.
Clause 11 – Industrial property rights and deficiencies in title
(1) If the goods to be supplied by us are to be produced in accordance with drawings, models and samples or by using parts supplied by the customer, then the customer shall warrant that no third-party rights are violated hereby in the country of destination of the goods. We will notify the customer of any rights of which we are aware; however, we are not obliged to carry out our own research. The customer shall indemnify us against any third-party claims upon first request, and undertakes to compensate us for all damage hereby incurred. If a third party prohibits us from producing or supplying the goods with reference to a right to which the third party is entitled, then we shall be entitled – without examination of the legal position – to suspend the work pending resolution of the legal position by the customer and the third party. If, due to this delay, the continuation of the contract is no longer reasonable for us, then we are entitled to withdraw from the contract.
(2) Title, copyrights and any industrial property rights, in particular all rights of usage and exploitation of the models, moulds and devices, designs and drawings designed by us or by third parties on our behalf shall not belong to the customer but to us. On request, the customer shall immediately return to us the documents, moulds, samples or models, including any copies made.
(3) In the case of other deficiencies in title, section 6 shall apply mutatis mutandis.
Clause 12 – Food safety and recycled materials
(1) In the event that a product is to be used in contact with a foodstuff, only the customer shall be responsible to ensure suitability of the material for the foodstuff in question.
The customer shall be responsible to check in advance whether the material is suitable for the foodstuff in question.
(2) Any recycled raw materials used in production are always carefully selected. Despite this, however, regeneration plastics and similar products may be subject to significant fluctuations in terms of surface texture, colour, purity, smell and physical or chemical properties on a batch by batch basis. In these cases the customer shall not be entitled to address any notification of defects to us. By way of compensation in these cases, however, we will assign to the customer any claims against upstream suppliers at the request of the customer; we do not assume any liability for the existence of such claims.
Clause 13 – Jurisdiction – place of performance
(1) Insofar as the customer is a merchant (Kaufmann), our registered office shall be the place of jurisdiction; we are, however, also entitled to sue the customer at the court responsible for his registered office or residence.
(2) The law of the Federal Republic of Germany shall apply; the UN Sales Convention shall be excluded.
(3) Unless otherwise indicated in the order confirmation, our registered office shall be the place of performance.
Effective: October 2016