I. Scope of Validity
1. The terms of sale given hereinafter apply to all contracts concluded between the Purchaser and S + P concerning the delivery of goods, provided that the Purchaser is a company, legal entity under public law or special fund under public law. Contracts are executed exclusively on the basis of the following conditions. The quotation, the quotation acceptance and the order confirmation, as well as the sale of any product, are subject to these conditions. We shall not recognise any contradictory or deviating conditions of purchase, unless we have expressly agreed to apply these conditions. This consent requirement shall always apply, particularly if we carry out the Purchaser’s order without qualification and in full knowledge of these contradictory or deviating conditions of the Purchaser.
2. In the contracts, all agreements that have been made between the Purchaser and S + P about the execution of the purchasing contracts up to the time of the respective conclusion of the contract are documented in writing. The effectiveness of individual agreements made retroactively in individual cases remains unaffected.
3. If S + P and the Purchaser have arranged a framework agreement, these General Terms of Sale shall apply both to this framework agreement and to the individual delivery or purchase order.
4. The General Terms of Sale shall also apply to all future business relationships, even if these terms are never agreed on expressly.
II. Offer and Contract Conclusion
1. We can accept an order from the Purchaser which is to be qualified as a legally binding offer for the conclusion of a purchasing contract within two weeks by sending an order confirmation or by rendering the deliveries or services ordered without qualification, with the choice being ours.
2. Our quotations are non-binding, unless we have expressly designated them as binding. Information about our goods (particularly technical data, dimensions, performance and consumption data, as well as the descriptions in the respective product information or advertising materials, etc.) is only approximate and roughly representative, provided that usability for the contractually intended purpose does not require an exact match; this information does not guarantee the condition, unless this guarantee is made expressly and in writing.
3. We retain our property right, copyright and other protective rights on all figures, calculations, drawings and other documents. The Purchaser may only pass on these items, regardless of whether we have marked them as confidential, to third parties in text form as such or in terms of content, disclose them, use them themselves or have them used by third parties or reproduce them with our consent.
4. Information about current warehouse inventory is always non-binding. If inventory is communicated to the customer, this is considered inventory that is specifically reserved for customer or volume groups and does not need to be identical to the actual inventory.
III. Terms of Payment
1. Our prices apply to the scope of service and delivery indicated in the order confirmations. Additional or special services are billed separately. Prices shall apply ex works in Öhringen, plus packaging, duties, insurance and, in individual cases, additional taxes and duties, if not otherwise specified. The statutory value added tax is not included in our prices. We list this in the invoice separately in the statutory amount on the date the invoice is issued.
2. Unless otherwise agreed, invoices shall be due and payable without deduction within 30 days from the date of invoicing and delivery. We grant a discount of 2% for payments made within 10 days of the date of invoice, unless the Purchaser is in default of payment for other payment obligations towards us. Payment is only considered to have occurred once the funds are available to us. In the case of cheque payments, payment is only considered to have occurred once the cheque has cleared.
3. If the Purchaser does not pay within the defined period, the Purchaser shall be in default of payment, without a new payment request needing to be made. In the case of late payment, interest is to be paid on the purchase price at the legally applicable late payment interest rate for business owners. Further claims shall remain unaffected. If the Purchaser does not render payment upon further request, we are entitled to make all existing obligations of the Purchaser due and payable, in particular also deferred or instalment payments, and to deny any further deliveries.
4. The Purchaser shall be authorised to offset and/or withhold payment only if the counter-claims have been determined as legally valid, have been recognised by us, are indisputable or if the counter-claims arise from the same specific contractual relationship as the principal claim and are in a mutual relationship with this claim.
5. If S + P has granted instalment payments for the Purchaser, the remaining amount shall be due and payable in full if the Purchaser is in default of payment of an instalment by more than 8 days.
6. Price changes are permitted if more than four months have passed between the contract conclusion and the agreed delivery date and if the price change can be traced back to a recent cost increase for which we are not liable. A cost increase has occurred if wages, material costs, transport costs ancillary transport costs or sales costs increase before delivery. The same applies if duties increase or a duty is introduced, or cost changes result due to price increases of upstream suppliers or due to exchange rate fluctuations. In these cases, S + P is authorised to increase the price appropriately in accordance with the cost increases.
IV. Delivery and Service Period, Liability in Case of Late Delivery
1. Delivery dates or deadlines that are not agreed upon or promised by us expressly as binding are exclusively non-binding specifications. They shall only be considered approximations and describe a likely delivery date. Agreements or promises about a binding delivery date deviating from this must be made expressly and in writing. The delivery period only begins when the Purchaser has properly and completely performed those cooperation activities that are obligatory on its part.
2. If we do not receive deliveries or services from our sub-suppliers or subcontractors, or do not receive correct or timely deliveries or services for reasons for which we are not responsible despite proper coverage, or if an event of force majeure occurs, we shall inform our customer in writing in a timely manner. In this case, we are authorised to extend the delivery or service period by the duration of the temporary hindrance or, in the case of a significant hindrance whose duration is not temporary, to withdraw from the part of the contract that has not yet been fulfilled, entirely or in part, if we have performed the above obligation of notification and have not assumed the procurement risk or production risk. Force majeure includes any other unforeseeable event upon contract conclusion, such as legal strikes or lockouts, government interventions, energy and resource shortages, transport bottlenecks or operational disturbances through no fault of our own, such as those due to fire, water and machine damage, unexpectedly occurring pandemics or epidemics, acts of war and war-like acts, economic sanctions and all other hindrances for which we objectively cannot be held responsible. If the delivery or service is delayed by more than one month as a result of one of the cases named above in Clauses 1 and 3, both we and the customer regardless of the deadline requirement for the customer and excluding any claims for damages¬ are authorised to withdraw from the contract with regard to the volume affected by the delivery disturbances. The customer is authorised to withdraw from the entire contract if a partial delivery is unacceptable for the customer.
3. In any case, we shall enter into default of delivery only after an appropriate grace period set by the customer has passed, unless time is of the essence for the transaction as defined by § 286 para. 2 No. 4 of the German Civil Code (BGB) or § 376 of the German Commercial Code (HGB).
4. Our legal rights, particularly in the case of an exclusion of the duty to perform (e.g. due to impossibility or unreasonableness of performance and/or supplementary performance), remain unaffected. Claims for damages due to delayed delivery are excluded, provided that they are not based on any intentional or grossly negligent actions on our part or on the part of our subcontractors, or based on the culpable violation of essential contractual duties. Essential contractual duties are any that protect the essential legal positions of the customer, the guarantee of which is the very essence and purpose of the contract; these also include those contractual duties whose performance enables the proper completion of the contract in the first place and those whose observance the contract partner frequently trusts and may reasonably trust.
The exclusion of liability does not apply to damages caused by injury to life, limb and health or damages affecting warranties.
In the case of a simple negligent violation of an essential contractual duty, however, we shall only accept liability for typical, immediate, average damage foreseeable at the time that the contract was concluded.
5. We are only authorised to perform partial deliveries and partial services if:
- the partial delivery or partial service is usable for the customer as part of the intended purpose of the contract,
-the delivery of the remaining ordered goods or the rendering of the remaining commissioned services is ensured, and
-this does not cause any significant added outlay or extra costs for the customer (unless we have agreed to accept these costs).
6. If the Purchaser is in default of acceptance, we are then entitled to demand compensation for accrued damages and any extra expenses. The same applies if the Purchaser culpably violates its cooperation duties.
V. Place of Fulfilment, Transfer of Risk, Shipping, Packaging
1. Delivery shall be ex warehouse in Öhringen, which is also the place of performance for the delivery. This shall also apply in the event of subsequent performance. At the request and expense of the Purchaser, the goods will be shipped to another destination (sale by delivery to a place other than the place of performance).
2. The risk of accidental loss and accidental deterioration of the goods shall transfer to the Purchaser upon handover at the latest. In the case of sales shipment, however, the risk of accidental destruction and accidental deterioration of the goods, as well as the risk of delay, passes to the shipper, freight carrier or other person or institution assigned to complete the shipment upon handover of the goods for shipment. Handover is still considered to have taken place if the Purchaser is in default of acceptance.
3. With regard to the shipment method and shipping route, we shall try to take into consideration the wishes and interests of the Purchaser; added costs caused by this – even in the case of agreed free delivery – shall be borne by the Purchaser.
4. We do not take back transport packaging or any other packaging in accordance with the packaging ordinance; this excludes pallets. The Purchaser shall take care of disposal of the packaging, which becomes its property, at the Purchaser’s own expense.
5. If the shipping is delayed on the request of or due to fault of the Purchaser, we shall store the goods at the Purchaser’s risk and expense. In this case, the notice of readiness to ship shall be deemed equivalent to shipment.
6. On request and at the expense of the Purchaser, we shall insure the delivery using transport insurance. This requires an instruction from the Purchaser given expressly and in writing.
VI. Warranty/Limitation of Liability/Compensation for Wasted Expenditures
1. There shall only be claims for defects from the Purchaser if the Purchaser has properly fulfilled its legally required examination and notification duties, particularly in accordance with § 377 HGB. Regardless of the legal requirements for proper examination, the Purchaser shall at least examine the supplied goods after delivery at its location or that of a third party designated by the Purchaser carefully and in a reasonable scope – if applicable, through random checks – at least for dimensional accuracy, material, weight and surface condition. Defects that are revealed in this way shall be indicated to us in writing within one week of receipt of goods. If this does not occur, the goods shall be considered accepted. Hidden defects shall be communicated to S + P immediately after their discovery in writing. A proper notification of a defect shall indicate the willingness of the Purchaser to send back the rejected delivered goods on the request of S + P with freight prepaid. In the case of a justified notification of a defect, S + P shall compensate the Purchaser for the cost of the most economical shipping route; this shall not apply if costs increase because the delivered goods are located somewhere other than the place of intended use. If the Purchaser fails to carry out a proper inspection and/or to give notice of a defect, our liability for the defect which was not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for installation or mounting, this shall also apply if the defect only became apparent after the corresponding processing as a result of the breach of one of these obligations; in this case, the Purchase shall, in particular, have no claims for reimbursement of the corresponding costs (dismantling and installation costs).
2. The legal regulations apply to the rights of Purchaser in the case of quality defects and defects of title (including incorrect and under delivery as well as improper assembly or defective assembly instructions), if not otherwise specified in preceding or following provisions.
3. The basis of our liability for defects is above all the agreement reached on the quality and the presupposed use of the goods (including any accessories and instructions). All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on quality in this sense. Insofar as the quality was not agreed, it shall be assessed in accordance with the statutory regulation whether a defect exists or not (§ 434 para. 3 BGB (German Civil Code)). Public statements made by the manufacturer or on its behalf, in particular in advertising or on the label of the goods, take precedence over statements made by other third parties.
4. Independent of the preceding and following provisions, the legal regulations shall apply in the following cases:
- intentional actions on our part;
- damage due to injury to life, limb and health;
- claims in accordance with product liability law;
- if warranties taken over by us are excluded by deviating provisions.
In all cases, the special statutory provisions on the reimbursement of expenses in the case of final delivery of the newly manufactured goods to a consumer (supplier’s recourse pursuant to §§ 478, 445a, 445b or §§ 445c, 327 para. 5, 327u BGB (German Civil Code)) shall remain unaffected, unless equivalent compensation has been agreed, e.g. within the scope of a quality assurance agreement.
5. Otherwise, the following aspects apply to the rights of the Purchaser in the case of quality defects and defects of title:
a) Liability for compensation for damages and compensation for wasted expenditures
Claims for damages due to defects of title and quality defects are excluded, provided that they are not
- based on grossly negligent actions on our part or on the part of our subcontractors, or
- based on the culpable violation of essential contractual duties Essential contractual duties are any that protect the essential legal positions of the customer, the guarantee of which is the very essence and purpose of the contract; these also include those contractual duties, the performance of which enables the proper completion of the contract in the first place and on the observance of which the contracting partner frequently trusts and may reasonably trust.
In the event of a simple negligent breach of an essential contractual obligation, we shall only be liable for the typically foreseeable damage according to the type of contract conclusion.
Claims for compensation for wasted expenditures in accordance with § 284 BGB (German Civil Code) shall be waived if and insofar as, as stated previously, a claim for compensation for damages in place of performance has been effectively disclaimed.
b) Supplementary performance
- If the delivered item is defective, we can initially choose whether we shall provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the Purchaser in the individual case, he may reject it. Our right to refuse subsequent performance under the statutory preconditions remains unaffected.
- If the Purchaser has already installed the goods delivered by S + P into another object or attached them to another object at its location, the Purchaser must offer us the opportunity to remove the goods ourselves and reinstall or reattach improved or additional goods ourselves, provided that this is reasonable for the Purchaser, for the purposes of supplementary performance, and to define an appropriate period for this. This shall apply regardless of whether we were originally required to install or assemble goods in addition to their delivery; using this approach, the installation or assembly of delivered goods does not become part of supplementary performance.
- If the Purchaser has already resold the goods delivered by S + P, the Purchaser shall set a prior and appropriate period for S + P for supplementary performance if the Purchaser has to take back the goods from its customer as a result of the defect or if the Purchaser’s customer has reduced the purchase price.
- Our right to refuse supplementary performance in accordance with the legal requirements remains unaffected.
c) Compensation for expenses for supplementary performance
- The Purchaser is only entitled to demand compensation from S + P for expenses incurred by it for the purpose of subsequent performance, in particular for the removal and reinstallation of the item or for the removal and reinstallation of the same, under the further statutory conditions, if the reasonable period of time set by the Purchaser for this purpose has elapsed without success.
- If, in the case of resale by the Purchaser, the object delivered by S + P needed to be removed and reinstalled or removed and reattached at the location of a direct customer of the Purchaser or a different customer in the supply chain for the purposes of supplementary performance, S + P is not required to compensate the Purchaser for the expenses that arise from this.
- If it is revealed that the request for rectification from the Purchaser is unjustified, S + P can demand compensation from the Purchaser for the costs arising (particularly testing, installation, removal and transport costs), unless the lack of defect was not able to be determined by the Purchaser.
The special aspects mentioned above under items b) and c) do not apply in the case of reimbursement of expenses in the case of final delivery of newly manufactured goods to a consumer (supplier recourse according to §§ 478, 445a, 445b or §§ 445c, 327 para. 5, 327u BGB (German Civil Code)), unless equivalent compensation has been agreed, e.g. within the framework of a quality assurance agreement.
6. In case of delivery of newly produced goods by S + P that are sold at the end of the supply chain in unprocessed form by a business owner to a consumer, even if the latter has further processed it, the following additional aspects apply to the rights of the Purchaser:
- Claims of the Purchaser based on § 478 BGB are excluded, provided that they involve a defect based on advertising statements or other contractual agreements not originating from S + P, or if the Purchaser, its immediate customer or another customer in the supply chain has provided a special guarantee to the end user.
- Claims are also excluded if the Purchaser itself, its immediate customer or another customer in the supply chain was not required to exercise warranty rights toward the end user in accordance with legal regulations or if the Purchaser has not objected to a claim asserted against it. This also applies if the Purchaser, its immediate customer or another customer in the supply chain has taken over warranties vis-a-vis the end user that exceed the legal requirements.
- The claims of the Purchaser based on § 478 BGB (German Civil Code) are excluded as a whole if the Purchaser has not properly fulfilled its legally required examination and notification duties in accordance with the detailed specifications of Section VI No. 1.
VII. Other Liability
Claims for damages due to a violation of a non-contractual duty (liability based on tort) or due to fault during or before the conclusion of the contract (culpa in contrahendo) as well as any other legal basis, particularly the violation of general duties arising from an obligation (§ 241 para. 2 BGB (German Civil Code)) or other contractual duties (§ 280 para. 1 BGB), provided that this does not involve warranty claims, are excluded, provided that they are not based on intentional, fraudulent or grossly negligent actions on our part or on the part of our subcontractors or based on culpable violation of essential contractual duties.
The exclusion of liability does not apply to damages caused by injury to life, limb and health or damages affecting warranties and claims in accordance with product liability law.
In the case of a simple negligent violation of an essential contractual duty, however, we shall only accept liability for typical, immediate, average damage foreseeable at the time that the contract was concluded.
1. Deviating from § 438 para. 1 No. 3 BGB (German Civil Code), the general limitation period for claims due to quality defects and defects of title, including the claim for reimbursement for expenses in the supply chain in accordance with § 445a para. 1, para. 3 BGB, is one year from delivery. If an acceptance has been agreed, the limitation begins upon acceptance.
2. However, if the goods constitute a building or an object that has been used as a building in the typical manner and has resulted in its defectiveness (building material), the limitation period is 5 years from delivery in accordance with the legal regulation (§ 438 para. 1 No. 2 BGB). Other legal special provisions on limitation remain unaffected (particularly § 438 para. 1 No. 1, para. 3, §§ 444, 445b BGB).
3. If the goods are items that can be used for a building, but also for other services and works, the limitation period pursuant to Clause 1 shall apply, unless the installation of the goods was of essential importance for the building. In that case, the limitation period pursuant to Clause 2 shall apply.
4. Deviating from § 445b Par. 2 S. 2 BGB, in the case of resale of the goods delivered by S + P by the Purchaser, the suspension of expiration regarding the limitation of defect claims from the Purchaser toward S + P ends three years after delivery of the goods.
5. The present limitation periods from the sale of goods law shall also apply to contractual and non-contractual claims for damages from the Purchaser based on a defect of the goods, unless the application of the regular legal limitation (§§ 195, 199 BGB) would lead to a shorter limitation in this individual case. However, claims for damages from the Purchaser due to wilful intent, gross negligence, injury to life, limb and health as well as warranties or product liability law expire by limitation only after the legal limitation periods. The shortening of the limitation period or the suspension of expiration shall also not apply if the matter involves the delivery of goods by S + P that are sold at the end of the supply chain in an unprocessed state by a business owner to a consumer (Recourse of the entrepreneur – §§ 478, 479 BGB).
IX. Retention of Title
1. The goods delivered by us shall remain our property up to the fulfilment of all existing claims or claims arising in future owed to us on any legal basis from the ongoing business relationship and/or specific purchasing contract with the Purchaser. In the case of the Purchaser behaviour that is contrary to the contract (e.g. payment default), we have the right to take back the reserved goods after first setting an appropriate period. If we take back the reserved goods, this represents a withdrawal from the contract. If we seize the reserved goods, this is a withdrawal from the contract. We are authorised to utilize the reserved goods after taking them back. After withdrawing an appropriate amount for the utilisation costs, the proceeds of utilisation shall offset the amounts owed to us by the Purchaser.
2. The Purchaser shall treat the reserved goods with care and insure them against damage due to fire, water and theft sufficiently at original value at its own expense. The maintenance and inspection work that is required shall be performed by the Purchaser at its own expense in a timely manner. Furthermore, upon request by S + P, the Purchaser shall at any time notify us of the state of the goods and communicate the storage place of the goods.
3. The Purchaser is authorised to dispose of or use the reserved goods in the normal course of business, provided that the Purchaser is not in default of payment. Pledges or assignments as security are not permitted. The Purchaser shall assign claims arising from resale or another legal basis (insurance, tort) regarding the reserved goods (including all current account balance claims) to us in full scope as security; this statement constitutes our acceptance of the assignment. We revocably authorise Purchaser to collect claims assigned to us for Purchaser’s account and in its own name. This collection authorisation can be revoked at any time if Purchaser does not properly fulfil its payment obligations. Purchaser shall also not be authorised to assign this claim for the purposes of debt collection by way of factoring, unless the obligation of the factor is simultaneously established to effect the consideration in the amount of the debts directly to us for as long as we still have claims against the Purchaser. The Purchaser shall furthermore obligated notify us immediately of any seizure or other interference by a third party.
4. Any transformation of the reserved goods by the Purchaser is always carried out on our behalf. If the reserved goods are processed with other items which do not belong to us, we shall acquire co-ownership of the new item in proportion to the value of the reserved goods (total invoice amount including value-added tax) to the other processed items at the time of the processing. In the case of inseparable combination of the reserved goods with other items that do not belong to us, we shall acquire co-ownership of the new item in proportion to the value of the reserved goods (total invoice amount including value-added tax) to the other combined items at the time of the combination. If the Purchaser’s item is to be considered the main item as a result of combination, we and the Purchaser agree that the Purchaser shall transfer co-ownership of this item to us on a proportional basis; this statement constitutes our acceptance of this transfer. Our sole or co-ownership of an item arising from this shall be kept for us by the Purchaser. The same applies to the new item created through processing or transformation as to the reserved goods, but with the limitation that the Purchaser shall only assign claims of third parties to us in the amount that we have acquired through co-ownership according to the previous statement.
5. In case of access of third parties to the reserved goods, particularly seizures, the Purchaser shall indicate our property to the third parties and immediately notify us so that we may assert our property rights. If the third party is not able to reimburse us for the legal or out-of-court costs arising in this context, the Purchaser shall be liable for this.
6. We shall release the securities due to us insofar as the realisable value of our securities exceeds the secured claims by more than 10%, in which process we are at liberty to select the securities to be released.
X. Place of Fulfilment, Jurisdiction, Applicable Law
1. If the Purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Heilbronn, Germany. The same shall apply if the buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these general terms of sale and delivery or a prior individual agreement or at the general place of jurisdiction of the buyer. Priority statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
2. The legal relationship between us and our customers or between us and third parties shall be governed exclusively by applicable law in the Federal Republic of Germany, excluding international uniform law, particularly the UN Convention on Contracts for the International Sale of Goods.
1. If these provisions are or become partially void or incomplete or are excluded by a special agreement, the validity of the remaining provisions shall not be affected by this.
2. We would like to note that we store data of our customers as part of our mutual business relationships in accordance with applicable data protection regulations, particularly the European General Data Protection Regulation and the German Data Protection Act.
Schäfer + Peters GmbH