General Terms and Conditions of SCHOLL Concepts GmbH
§ 1 Scope of Application
(1) These General Terms and Conditions shall apply to business transactions between SCHOLL Concepts GmbH, Maybachstrasse 7, D-71686 Remseck (hereinafter: “Seller”) and entrepreneurs. All deliveries, services and offers of the Seller shall be subject solely to these General Terms and Conditions. They shall be part of all contracts that the Seller concludes with his contractual partners (hereinafter also referred to as “Client”) regarding the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Client, even if they are not again stipulated separately.
(2) Terms and conditions of the Client or third parties shall not apply, even if the Seller does not separately object to their application in each individual case. Even where the Seller makes reference to a letter containing terms and conditions of the Client or a third party or refers thereto, this shall constitute no assent to such terms and conditions.
§ 2 Offer and Conclusion of Contract
(1) All offers of the Seller shall always be without obligation and non-binding unless they are explicitly marked as being binding or contain a certain time period for acceptance. Orders or assignments can be accepted by the Seller within 14 days of receipt.
(2) The sole basis for the legal relationship between the Seller and the Client shall be the purchase contract in writing, including these General Terms and Conditions. It completely reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal assurances by the Seller prior to the conclusion of that contract shall not be legally binding and verbal agreements of the contracting parties shall be replaced by the written contract, provided that it does not arise from them that they are to continue to be binding.
(3) Additions and amendments to the agreements, including these General Terms and Conditions, must be in writing in order to be valid.
(4) Seller’s information regarding the subject matter of the delivery or service (e.g. weights, dimensions, utilization values, load capacity, tolerances and technical data) as well as representations thereof (e.g. drawings and illustrations) shall be of only approximate relevance unless use for the contractually intended purpose demands an exact match. They shall be no guaranteed quality features, but descriptions or identifications of the delivery or service. Customary deviations and deviations that are due to legal regulations or that represent technical improvements as well as the replacement of components with equivalent parts shall be permissible, provided they do not affect the suitability for the contractually intended purpose. Due to production reasons, delivery quantities may deviate from the order quantity by up to 10% as over- or under-delivery (+/-).
(5) The Seller reserves the right to the property right and/or the copyright to all offers and cost estimates that he has submitted as well as to drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Client. The Client may not make such objects as such or in content available to third parties without the express consent by the Seller nor make them public, or use or reproduce them himself or through third parties. Upon request of the Seller, the Client shall completely return these objects to the former and destroy copies possibly produced thereof when they are no longer needed in the ordinary course of business or when negotiations do not lead to the conclusion of a contract. Excluded therefrom shall be the storage of electronically provideddata for the purpose of common data backup.
§ 3 Prices and Payment
(1) Prices shall be valid for the scope of services and deliveries stated in the order confirmations. Extra and special performances shall be charged separately. All prices are net prices in EURO and are ex works (Remseck warehouse) plus statutory VAT and freight, customs duties, and fees for export deliveries as well as other public charges.
(2) Unless otherwise agreed upon, invoiced amounts shall be paid within 30 days of the date of invoice without any deduction. Receipt by the Seller shall be decisive for the date of payment. Payment by check shall be excluded unless it is agreed upon separately in individual cases. Should the Client not effect payment by the due date, then interest of 5% per annum from the due date shall be payable for outstanding amounts; the assertion of higher interest and further damages in case of default shall remain unaffected.
(3) Offsetting against counterclaims of the Client or the retention of payments due to such claims shall be permissible only where the counterclaims are undisputed or confirmed by court.
(4) The Seller shall be entitled to execute or render outstanding deliveries or services only against advance payment or the provision of security should he become aware after the conclusion of the contract that circumstances exist which are suitable to significantly reduce the credit status of the Client and due to which payment of outstanding Seller’s claims by the Client from the respective contractual relationship is at risk.
§ 4 Delivery and Delivery Time
(1) Deliveries shall be ex works (EXW – Incoterms 2010), Maybachstrasse 7, D-71686 Remseck, unless otherwise expressly agreed upon by Seller and Client.
(2) Deadlines and dates for deliveries and services promised by the Seller without obligation shall always be approximate, unless a fixed deadline or a fixed date has been expressly assured or agreed upon. Where shipment has been agreed upon, the delivery periods and delivery dates shall refer to the point in time of hand-over to the forwarder, carrier or other third party commissioned with transportation. Where collection ex works has been agreed upon, delivery times and delivery dates shall refer to the provision for collection ex works at the scheduled date within the Seller’s normal business hours.
(3) The Seller shall not be liable for the impossibility of delivery or for delays in delivery where they are due to force majeure or other unforeseeable events at the time of the conclusion of the contract (e.g. business disruptions of all kinds, difficulties in material or energy procurement, delays in transport, strikes, legitimate lockouts, lack of manpower, energy and raw materials, difficulties in obtaining necessary regulatory approvals, regulatory action, or suppliers failure to supply at all, correctly or timely) for which the Seller is not responsible. If such events make the delivery or service considerably more difficult or impossible for the Seller and the hindrance is not only of a temporary nature, then the Seller shall be entitled to withdraw from the contract. In the event of hinderance of a temporary duration, the delivery or service times shall extend or the delivery or service dates shall be postponed by the period of the hindrance plus a reasonable preparatory period. If the Client cannot reasonably be expected to accept the delivery or service due to the delay, then he can withdraw from the contract by means of an immediate written declaration to the Seller.
(4) If the Seller defaults on a delivery or service or if a delivery or service becomes impossible for whatever reason, then the liability of the Seller for damages shall be limited according to § 8 of these General Terms and Conditions.
§ 5 Place of performance, Dispatch, Packaging, Transfer of Risk
(1) In the event that neither delivery ex works (EXW – Incoterms 2010) applies nor that the parties have agreed on another form of delivery according to Incoterms 2010, then the provisions of this § 5 shall apply.
(2) The place of performance for all obligations arising from the contractual relationship shall be Remseck, unless otherwise specified.
(3) The mode of dispatch and packaging shall be at the dutiful discretion of the Seller. If collection by the Client ex works has been agreed upon, then the Client or his agent must take charge of loading the delivery item and observing the statutory regulations, in particular with regard to the transport of dangerous goods.
(4) The risk shall transfer to the Client at the latest upon handover of the delivery item (where the commencement of the loading procedure is decisive) to the freight forwarder, carrier or other third party commissioned to perform the shipping. In the event of collection ex works, the risk shall transfer at the latest when the delivery item has been handed over to the Client or his representative. If the shipment or handover is delayed as a result of a circumstance caused by the Client, then the risk shall transfer to the Client from the day on which the item to be delivered is ready for dispatch or handover and the Seller has notified the Client thereof. (5) Storage costs after the transfer of risk shall be borne by the Client. Storage by the Seller shall incur storage cost of 0.25 % per full week of the amount invoiced for the delivery item to be stored. The right to assert and demonstrate higher or lower storage costs shall be reserved.
§ 6 Warranty, Material Defects
(1) The warranty period shall be one year from delivery or from acceptance, where acceptance is required. This deadline shall not apply to claims for damages of the Client arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or his vicarious agents, which shall respectively fall under the statute of limitations according to the statutory provisions.
(2) The delivery items are to be carefully examined immediately upon delivery to the Client or a third party designated by him. They shall be deemed approved by the Client in terms of apparent defects or other defects that would have been recognized following immediate and careful examination if the Seller does not receive a written notice of defect within 7 working days upon delivery. With regard to other defects, the delivery items shall be deemed approved by the Client if the notice of defect is not received by the Seller within 7 working days after the date on which the defect was detected; if the defect was with normal use recognizable to the Client at an earlier date, then, however, this earlier date shall be relevant for the commencement of the notice period. Upon Seller’s request, a rejected delivery item must be returned carriage paid to the Seller. In the event of a legitimate notice of defect, the Seller shall pay the costs of the cheapest shipping means; this shall not apply where the costs increase for the reason that the delivery item is located in a place other than the place of intended use.
(3) In the event of material defects of the delivery items, the Seller shall be obliged and entitled to rectification or replacement of the item at his option, which is to be exercised within a reasonable period of time. In the event of failure, i.e. the impossibility, unreasonableness, refusal or unacceptable delay of the rectification or replacement delivery, the Client shall be entitled to withdraw from the contract or reasonably reduce the purchase price.
(4) If a defect is due to fault on the part of the Seller, then the Client can claim compensation for damages subject to the conditions specified in § 8.
§ 7 Property Rights
(1) Each contractual partner shall notify the other contractual partner in writing without delay should claims have been raised against him for the infringement of third-party industrial property rights or copyrights. Any claims of the Client for damages shall be subject to the restrictions of § 8 of these General Terms and Conditions.
(2) In the event of infringement by products of other manufacturers supplied by the Seller, the Seller shall, at his discretion, assert his claims against the manufacturers and upstream suppliers for the account of the Client or assign them to the Client. In these cases, claims against the Seller shall exist only where the judicial enforcement of the aforementioned claims against the manufacturers or upstream suppliers was unsuccessful or unpromising, for example, due to insolvency.
§ 8 Liability for Damages due to Fault
(1) Seller’s liability for damages, for whatever legal reason, in particular for reasons of impossibility, default, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort shall be limited according to this § 8 to the extent that fault is there of relevance.
(2) The Seller shall not be liable in the case of simple negligence on the part of his corporate bodies, legal representatives, employees or other vicarious agents, provided that this pertains to no breach of obligations that are essential to the contract. Essential to the contract are obligations in terms of timely delivery of the delivery item, its freedom from defects in title and material defects that more than insignificantly affect its functionality, or the suitability for use, as well as advisory, protective and custody obligations, which are to enable the Client to use the delivery item according to contract or which intend to protect the life or limb of Client’s staff or protect his property against significant damage.
(3) If the Seller is liable for damages on the merits in accordance with this § 8, then this liability shall be limited to damages which the Seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which he should have foreseen when applying due diligence and care. Indirect damage and consequential damage resulting from defects in the delivery item shall furthermore only be eligible for compensation where such defect can typically be expected with proper use of the delivery item.
(4) In the case of liability for simple negligence, the Seller’s obligation to pay compensation for property damage and resulting further financial loss shall be limited to EUR 5,000,000.00 (5 million) per claim (according to the current coverage by his product liability or liability insurance), even if this pertains to the breach of essential contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favor of the corporate bodies, legal representatives, staff and other vicarious agents of the Seller.
(6) Where the Seller provides technical information or advice and such information or advice is no part of the scope of performance that is owed by him and contractually agreed upon, this shall be free of charge and exclude all liability.
(7) The limitations of this § 8 shall not apply to Seller’s liability for intentional or grossly negligent conduct, for quality features guaranteed, for injury to life, limb or health or under the Product Liability Act.
§ 9 Retention of title
(1) The goods delivered by the Seller to the Client shall remain the property of the Seller until all payments arising from the business relationship between the Seller and the Client have been received in full.
(2) Client shall be entitled to sell the items subject to the retention of title in the ordinary course of business until the occurrence of the event of liquidation (section 6). Pledges and transfers by way of security shall be prohibited.
(3) As a precaution in the event of an onward sale of the goods subject to retention of title, the Client hereby assigns to the Seller the claim arising against the purchaser. The same shall apply to other claims that take the place of the goods subject to retention of title or otherwise arise with respect to the goods subject to retention of title, such as insurance claims or claims arising from tort in the event of loss or destruction. The Seller irrevocably authorizes the Client to collect the claims assigned to the Seller in his own name. The Seller can only revoke this collection authorization in the event of liquidation.
(4) If third parties seize the goods subject to retention of title, in particular by means of execution, the Client shall immediately inform them about Seller’s ownership and inform the Seller thereof in order to enable him to enforce ownership rights. If the third party is not in a position to reimburse the Seller for any judicial or extrajudicial costs incurred in this context, then the Client shall be liable for this vis-a-vis the Seller.
(5) The Seller shall release the goods subject to retention of title as well as the goods or claims that have taken their place, provided that their value exceeds the amount of the secured claims by more than 20%. The selection of items to be released shall be at the discretion of the Seller.
(6) If the Seller withdraws from the contract in the event of breach of contract by the Purchaser – in particular default of payment – the he shall be entitled to demand that the goods subject to retention of title be surrendered.
§ 10 Final Provisions
(1) If the Client is a merchant, a legal entity under public law, or a special fund under public law or has no general jurisdiction in the Federal Republic of Germany, then the place of jurisdiction for all disputes arising from the business relationship between the Seller and the Client shall be Seller’s domicile. However, this agreement shall not restrict Seller’s right to lodge legal disputes against the Client before any other competent court. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relationship between the Seller and the Client shall be subject solely to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) shall not apply.
(3) Should the contract or these General Terms and Conditions contain legal gaps, then those legally valid provisions shall be deemed to have been agreed upon which the contracting parties would have agreed upon according to the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of this legal gap.
Date of these GTC 2019-03-21