General Terms and Conditions
I. General provisions, conclusion of contract
1) Unless otherwise agreed, the following General Terms and Conditions shall apply to all agreements, offers, sales transactions, deliveries, products, and services. They are an integral part of every contract concluded between us as the seller – hereinafter referred to as the Seller – and our customers – hereinafter referred to as the Buyer. These General Terms and Conditions shall also apply to all orders placed within the framework of a uniform contract, irrespective of whether reference is made to them in each individual case.
2) These General Terms and Conditions shall apply exclusively. Deviating, conflicting, or supplementary General Terms and Conditions of the Buyer shall only become an integral part of the contract if and to the extent that the Seller has expressly consented to their application. This requirement of consent shall apply in all cases, for example even if the Seller makes a delivery to the Buyer without reservation in the knowledge of the Buyer’s General Terms and Conditions. Should the General Terms and Conditions of the Seller and the Buyer contradict each other, insofar as the application of the Buyer’s General Terms and Conditions has been agreed to, the statutory provisions shall apply with regard to the contradictory parts of these terms and conditions. In all other respects, the provisions of the Seller’s General Terms and Conditions shall apply.
3) Agreements and assurances as well as collateral agreements in written or verbal form must be confirmed in writing to become valid. The Seller’s customer service representatives do not have the authority to agree to amendments to these General Terms and Conditions. Subsequent amendments to the contract must also be made in writing. This also applies to the amendment of the clause requiring amendments to be made in writing.
4) The contract shall only be concluded by the written order confirmation or by delivery of the goods. The written order confirmation of the Seller is decisive for the content of the contractual relationship.
II. Delivery, partial delivery, and delivery delays
1) Delivery dates or delivery periods, which may be agreed to as binding or non-binding, shall be documented in writing. The delivery periods shall commence on the date of the order confirmation or from the date on which the nature and scope of the order are fully clarified. In the event that subsequent amendments to the contract are agreed to, the delivery date or the delivery period shall be adjusted accordingly, if necessary. Delivery deadlines shall be considered to have been met if the delivery item has left the Seller’s works by the time the corresponding deadline has expired.
2) The Buyer may request the seller in writing to deliver within a reasonable period 3 weeks after exceeding a non-binding delivery date or a non-binding delivery period,. The Seller shall be considered in delay at the earliest upon receipt of this request. In the event of a delay, the Buyer may set the Seller a reasonable extension period in writing stating that the Buyer will refuse to accept the item of purchase after expiration of the extension period. After unsuccessful delivery of the item of purchase upon expiration of the extension period, the Buyer is entitled to withdraw from the purchase contract by submitting a declaration in writing.
3) Partial deliveries are permissible. Subsequent deliveries abroad require the consent of the Seller.
4) If a delivery date bindingly agreed to or a delivery period bindingly agreed to is exceeded, the Seller shall be considered in delay as soon as the delivery date or the delivery period is exceeded. The rights of the Buyer shall then be determined according to Section 2(3) and Section 2(4) above.
5) In cases of force majeure, in particular interruption of operations, shortage of raw materials, traffic disruptions, industrial actions, official measures, and similar events, also insofar as they occur to a sub-supplier, the Seller shall be released from its obligation to perform for the duration of the impairment or its after-effects. In this case, the Buyer is not entitled to withdraw from the contract or to claim damages. The same shall apply in cases of unforeseen events or in the event of circumstances which make the production or delivery of the goods sold impossible or unduly difficult.
III. Shipping, transfer of risk
Shipment shall be made carriage forward. If the prices are agreed to as “carriage paid”, then the delivery may also be performed carriage forward and the cost of shipping included in the invoice. As soon as the goods leave the Seller’s works or are available to the recipient at the Seller’s works, the risk shall pass to the Buyer. The mode of delivery and its execution may be determined by the Seller at his due discretion unless the Buyer has provided special instructions regarding the mode of delivery or its execution. Insurance shall only be taken out at the express request and expense of the Buyer.
IV. Prices
1) Contracts and advance orders shall be processed at the prices valid at the time with the Seller. If market conditions have changed in the period between the placement of the order and delivery and if there are more than 4 months between the placement of the order and the earliest possible or desired delivery date, then the Seller shall be entitled to an appropriate adjustment of the price agreed to at its reasonable discretion. All changes to costs occurring between the placement of the order and delivery, in particular to the prices for raw materials, auxiliary materials, energy, and wages, shall be taken into account on a pro rata basis.
2) Unless otherwise agreed, all prices are net ex-works Wülfrath, excluding packaging.
V. Terms of payment, default
1) If no special payment period has been agreed to, then all invoiced amounts are due within 10 days of the date of invoice without deduction. In the event of payment after the due date, the Buyer, insofar as he is a merchant, shall owe interest on arrears in the amount of 5% per annum. If the Buyer is in default, he shall owe the Seller interest on arrears in the amount regulated by law, which currently amounts to 9 percentage points above the base interest rate for transactions in which no consumer is involved. We reserve the right to assert further claims for damage caused by default.
2) The exercise of the right of retention as well as offsetting against claims of the Seller are only permissible if the counterclaims have been recognised by the Seller or have been legally established.
3) If, in the period after conclusion of the contract or delivery, a significant change occurs in the Buyer or the Buyer’s company or if the Buyer’s creditworthiness is in doubt, then the Seller shall be entitled to perform outstanding services only after the provision of securities and, after expiration of a reasonable grace period, to withdraw from the contract or to demand damages for non-performance if the Seller’s request for the provision of security is not met in due time.
4) If the Buyer defaults on the obligation to pay the purchase price for a delivery, all claims arising from the specific contractual relationship with the Seller shall become due immediately and the Seller shall be entitled, subject to its other rights, to demand security before making further deliveries or, if this is refused by the Buyer, to withdraw at its own discretion in whole or in part from the contract not yet fulfilled after setting a reasonable grace period.
VI. Warranty
1) The statutory provisions shall apply to the rights of the Buyer in the event of material defects and defects of title (including incorrect delivery and short delivery as well as improper installation or faulty installation instructions) unless otherwise stipulated below. The special statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier recourse pursuant to Sections 478, 479 German Civil Code (BGB)).
2) The basis of the Seller’s liability for defects is in particular an agreement made on the condition of the goods, insofar as such an agreement has been made.
3) If no agreement on the condition of the goods was made, then it shall be assessed whether or not a defect exists according to the statutory regulations. The Seller assumes no liability for public statements made by third parties (e.g. advertising statements).
4) The Buyer’s right to assert claims for defects presuppose that he has fulfilled his statutory obligations to inspect and provide notice of defects (Sections 377, 381 German Commercial Code (HGB)). If a defect becomes apparent during or after the inspection, then the Seller must be notified of this without delay in writing. If the Buyer fails to inspect the goods or to notify the Seller of a defect, then the Seller shall not be liable for the defect not notified.
5) If the delivered item is defective, the Seller may first choose to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement). The right of the Seller to refuse the type of subsequent performance chosen remains unaffected if the legally regulated prerequisites for this choice exist.
6) The Seller is entitled to make the subsequent performance owed dependent on the Buyer’s full payment of the purchase price due. However, the Buyer shall be entitled to retain an appropriate portion of the purchase price in relation to the defect.
7) The Buyer shall give the Seller the time and opportunity required for the subsequent performance owed, in particular to hand over the goods rejected for the purpose of inspection. In the event of the delivery of a replacement, the Buyer shall return the defective item to the Seller in accordance with the statutory requirements.
8) The expenses required for the purpose of inspection and subsequent performance, in particular for transport, travel, labour, and material costs, shall be borne by the Seller if a defect actually exists. However, if a request by the Buyer to remedy a defect turns out to be unjustified, then the Seller may demand reimbursement of the corresponding costs it has incurred from the Buyer.
9) In urgent cases, e.g. when operational safety is endangered or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand reimbursement from the Seller for the expenses objectively necessary for this purpose. The Seller must be notified immediately of any such self-remedy, if possible in advance. The right of self-remedy does not exist if the Seller would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
10) If subsequent performance has failed, an appropriate deadline to be set by the Buyer for subsequent performance has expired before completion of the subsequent performance or is dispensable according to the statutory provisions, then the Buyer may withdraw from the purchase contract or reduce the purchase price. There shall be no right of withdrawal for an insignificant defect.
11) Claims of the Buyer for damages or reimbursement of futile expenses only exist pursuant to the following Section VII and are otherwise excluded.
VII. Exclusion of other liability
1) Unless otherwise stated in these General Terms and Conditions, including the following provisions, the Seller shall be liable for a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
2) The Seller shall be liable for compensation for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In the event of simple negligence, the Seller shall only be liable for the following:
- For damages arising from injury to life, limb, or health
- For damages arising from the breach of a material contractual obligation (an obligation whose fulfilment is a prerequisite for the proper performance of the contract and whose observance the Buyer regularly relies on and may rely on); in this case, though, the Seller’s liability shall be limited to compensation for the foreseeable, typically occurring damage.
3) The limitations of liability resulting from the above Clause 2 shall not apply insofar as the Seller has fraudulently concealed a defect or has provided a guarantee for the condition of the goods. The same applies to claims of the Buyer under the German Product Liability Act or from claims based on data protection laws.
4) In the event of a breach of duty that does not consist of a defect, the Buyer may only withdraw or terminate the contract if the Seller is responsible for the breach of duty. A free right of termination of the Buyer (in particular according to Sections 651, 649 of the German Civil Code (BGB)) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
VIII Limitation
1) The general limitation period for claims arising from material defects and defects of title is one year from the date of delivery. Insofar as acceptance has been agreed to, the limitation period shall begin upon acceptance.
2) However, if the goods are a building or an object which has been used for a building in accordance with its customary use and has caused it to become defective (building material), then the limitation period shall be 5 years from the date of delivery. Also unaffected are special statutory provisions regarding the right to demand the return of the goods by third parties (Section 438(1)(1) BGB), in the event of fraudulent intent on the part of the Seller (Section 438(3) BGB), and for supplier recourse claims in the event of final delivery to a consumer (Section 479 BGB).
3) The limitation periods stated above shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. In all cases, the limitation periods of the Product Liability Act and the provisions of data protection law shall remain unaffected. Otherwise, the statutory limitation periods shall apply exclusively to the Buyer’s claims for damages pursuant to VII.
IX Retention of title, drawings
1.) Until full payment of the purchase price for all deliveries of goods within the business relationship, including all ancillary claims, the delivered goods remain the property of the Seller. The retention of title shall also remain in effect if individual purchase price claims are included in a current invoice and if the balance has been settled and recognised.
2.) The Buyer is entitled to dispose over the goods in the ordinary course of business as long as he fulfils his payment obligation.
3.) All claims against third parties arising from the resale or any processing of the goods are hereby assigned by the Buyer in full to the Seller as security. The assignment also includes claims arising from other legal grounds in connection with the delivered goods, for example claims from insurance contracts, tort, or unjust enrichment.
In the event of resale or processing of the goods together with other goods not belonging to the Seller, the claim shall only be assigned in the amount of the value of the goods subject to retention.
4.) As long as the Buyer meets his payment obligations to the Seller, the Buyer may collect the assigned claims for the Seller’s invoices. However, this power shall expire if the Buyer does not fulfil his payment obligations, does not fulfil his payment obligations in time, or there are indications that the Buyer is unable to pay.
5.) Insofar as the Buyer collects the assigned claims himself, then they shall be collected on a fiduciary basis, and the proceeds collected shall be forwarded to the Seller in the amount of the invoice amount. The Seller shall be entitled to notify the purchaser of the goods, whose name shall be disclosed to the Seller upon request, of the transfer of claims and to issue payment instructions to him.
6.) If the Buyer has initially fulfilled all obligations and becomes indebted to the Seller again later, it is agreed for this case that the titles to the goods in the possession of the Buyer and delivered by the Seller are transferred to the Seller. The lieu of a transfer, the Buyer may keep the goods on behalf of the Seller, which must be done with due business diligence.
7.) If the goods delivered by the Seller under retention of title are processed, combined, mixed, or blended with other goods not belonging to the Seller, then the Seller shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other goods at the time of processing, combining, mixing, or blending. If the Buyer manufactures new items on the order of a third party and using the goods delivered by the Seller, the Buyer shall grant the Seller co-ownership of the new item in proportion to the value of the goods subject to retention of title used for the new item and the new item shall be kept by the Buyer for the Seller free of charge with due business care.
8.) The Buyer is obligated to hand over to the Seller on request the documents required to assert the Seller’s rights against third parties and to provide information on which goods delivered under retention of title are still in the possession of the Buyer, where these goods are located, and to which customers of the Buyer the remaining goods belonging to the Seller have been delivered in terms of quantity and type.
9.) The Seller is entitled to inspect the goods at the place where they are located at any time and, in the event of reasonable doubt as to the Buyer’s ability or willingness to pay, to retake possession of the goods currently in the Buyer’s possession.
10.) In the event of access to goods that are (co-)owned by the Seller, the Buyer must indicate the Seller’s ownership of the goods and notify the Seller immediately. The costs of appropriate legal action to protect the property of the Seller shall be borne by the Buyer. Insofar as the validity of the retention of title is linked to special formal requirements in the Buyer’s country, the Buyer shall be obliged to bear the costs of their fulfilment.
11.) If the value of the goods subject to retention of title or of the goods serving as security exceeds the total claims of the Seller arising from the business relationship with the Buyer by more than 10%, the Seller shall undertake to release the excess security at the request of the Buyer at the Seller’s discretion, but only for such deliveries or their surrogates that have been paid in full.
12.) Drawings of the Buyer remain the property of the Buyer and shall be returned to the Buyer on request. Subsequent changes to drawings or to the order entitle the Seller to charge the Buyer for the additional costs incurred as a result of the changes. The Buyer shall bear the costs incurred due to any inaccuracies in a drawing originating from the Buyer and for ambiguous information.
13.) Drawings supplied by the Seller for the manufacture or installation of its products remain the property of the Seller. Such drawings may not be made accessible nor handed over to third parties.
14.) Any models required for the manufacture of the Seller’s products shall remain the property of the Seller.
X. Place of fulfilment, place of jurisdiction
1) The place of fulfilment is the registered office of the Seller.
2) These General Terms and Conditions and all legal relations between the Seller and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods. However, the prerequisites and effects of the retention of title pursuant to Section 6 shall be subject to the law of the respective location of the item, insofar as the choice of law made thereafter in favour of German law is inadmissible or ineffective.
3) If the Buyer is a merchant in the sense of the German Commercial Code, a legal entity under public law, or a special fund under public law, then the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship or its initiation is the Seller’s place of business in Wülfrath, Germany. However, the Seller is also entitled to file a suit at the Buyer’s general place of jurisdiction.
4) Obligation to provide information pursuant to Section 36 of the German Consumer Dispute Settlement Act (VSBG): The Seller is neither willing nor obliged to participate in dispute settlement proceedings before a consumer arbitration board.
TH. SCHOLTEN GMBH & CO. KG