General Terms and Conditions (Sales)
for Schulte Elektrotechnik GmbH & Co. KG
1. Scope
These General Terms and Conditions for Sales (GTC) form the basis of all our contracts for the delivery of goods. These terms apply only to companies, legal entities under public law and public law special funds.
Our GTC are exclusively valid. Conflicting or deviating terms and conditions shall only become binding if we expressly acknowledge them in writing.
2. Conclusion of the Contract
Our offers as well as our details and information are subject to change and non-binding.
If an order confirmation is issued, this alone shall determine the scope of our service. If no written order confirmation is issued, our offer shall be decisive.
Custom-made products, i.e. goods which are procured at the customer's request or produced in accordance with the customer's request, can no longer be cancelled after receipt of the order confirmation and are excluded from exchange and/or credit. Verbal collateral agreements shall only become an effective part of the contract if they are confirmed by us in writing.
3. Prices
Our prices are net in EUR ex works in Lüdenscheid excluding packaging, insurance and shipping.
We calculate the prices in accordance with the price list valid for the individual product groups. The agreed price applies to custom-made products.
Our invoices are to be paid within ten days of the invoice date, unless otherwise agreed. This also applies to partial deliveries.
In the event that our service is to be rendered later than eight weeks after conclusion of the contract, we shall be entitled to make an appropriate price adjustment of up to 10% in the event of a substantial change in our processing costs, in particular in the event of a change in the costs of the materials to be processed by us, wages, freight rates, energy costs, taxes, customs duties, etc. If the change concerns a price adjustment of more than 10%, the customer is obliged to negotiate an appropriate price change with us. If a price adjustment is not made as a result or if negotiations fail, we shall be entitled to withdraw from the contract.
A set-off is only possible with those claims which are undisputed or legally established. The prohibition of offsetting shall not apply if the counterclaim submitted for offsetting relates to costs of remedying defects or completion.
4. Default of Payment
We are entitled to charge default interest at the statutory rate from the due date in accordance with Section 288 (2) of the German Civil Code. The assertion of further damages remains unaffected by this.
5. Delivery
Our delivery is subject to confirmation or after consultation with the customer. Delivery periods shall not commence before complete clarification of all execution details.
The choice of the mode of shipment and the packaging is made by us. This shall not apply if the customer has issued an express instruction. Divergent agreements in text or written form are possible. Partial deliveries are permissible and will be invoiced separately.
Our delivery obligation is subject to timely and correct self-delivery. This shall not apply if we are responsible for the non-delivery. If it is foreseeable that the delivery cannot be made on time, we will inform the customer of this in writing or text form and inform him of the reasons as well as the expected delivery time, insofar as this is possible for us. We shall only be in default of delivery if we have been set a reasonable deadline for delivery and been unsuccessful in meeting it, if we are responsible for the reasons for non-delivery and if the customer has rendered his services in full.
The delivery period begins with the notification by us of readiness for dispatch or collection and is subject to the condition that the counter performance has been rendered. If acceptance is to take place, the notification of readiness for acceptance or the acceptance date shall be decisive.
6. Packaging
We reserve the right to choose the packaging unless the customer has expressly instructed otherwise.
Transport packaging shall be returned to us in accordance with the Packaging Ordinance. If the items are not returned within three months of delivery, we will charge these at cost. Packaging that is not transport packaging will not be taken back.
7. Transfer of Risk
The goods are to be accepted immediately upon notification to the customer of readiness for dispatch or collection. At this moment the risk passes to the customer.
In the event of collection by the customer, we shall be entitled, at our discretion and at the customer's expense, to dispatch or store the goods in the event that the customer has not collected the goods within three days of notification of readiness for collection.
8. Warranty Claims
The prerequisite for warranty claims against us is that the customer fulfils his obligations under Section 377 of the German Commercial Code (HGB), the so-called notice of defects. A notice of defects shall be deemed to have been made in good time if it is made within a period of five working days, calculated from the date of receipt of the delivery by the customer or, in the case of hidden defects, from the date of discovery. If the goods have been accepted by the customer or if a preliminary inspection has taken place, the notice of defect is precluded if the defect could already have been determined at this point in time.
If the notice of defect is not justified according to our inspection and if the customer was aware of the non-existence of the defect at the time of the notice of defect or if it was in error due to negligence, the customer shall compensate us for the damage incurred. We charge a lump sum of 100.00 EUR in this regard. We reserve the right to assert further claims for damages. The customer is entitled to prove to us that the notified defect does exist and/or that we have incurred lower inspection costs than the lump sum.
If the notice of defect is justified, we shall, at our option, remedy the defect or make a replacement delivery. If the subsequent improvement fails after the customer has set a reasonable deadline, the customer may, at his discretion, demand a reduction in price or rescission. Withdrawal is not possible in the case of minor defects.
Warranty claims expire 24 months after the transfer of risk. They are not transferable.
9. Exclusion of Warranty
Our warranty is excluded in the event of further processing, unsuitable or improper use, faulty or improper assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, use of unsuitable operating materials, the effects of chemical, electrochemical or electrical influences, unless we are responsible for these. In addition, the warranty is excluded if the order does not correspond to the state of the art and/or has been declared or discussed as risky by us or our vicarious agents through technical information. The exclusion of warranty shall not apply if we, our legal representatives or our vicarious agents cause the damage or defect intentionally or through gross negligence.
10. Liability
We are not liable for infringements of insignificant contractual obligations based on simple negligence. In the case of other slightly negligent breaches of duty, our liability shall be limited to the foreseeable, contract-typical, direct average damage according to the type of goods. This shall also apply if our legal representatives or vicarious agents act with simple negligence. Damage claims expire 12 months after the transfer of risk. This shall not apply in cases in which claims are made against us under the Product Liability Act or due to injury to life, limb or health.
11. Retention of Title
We reserve the right of ownership of the delivered goods until all claims to which we are entitled against the customer from the business relationship have been fulfilled.
The customer is permitted to process or install the delivered goods. The processing is done for us. However, if the value of the goods belonging to us is less than the value of the goods not belonging to us and/or the processing, we shall acquire co-ownership of the new goods in the ratio of the value (gross invoice value) of the processed goods to the value of the remaining processed goods and/or the processing at the time of processing. Insofar as we do not acquire ownership of the new goods in accordance with the above, the customer shall grant us co-ownership of the new goods in the ratio of the value (gross invoice value) of the new goods belonging to the customer to that of the other processed goods at the time of processing. The preceding sentence shall apply accordingly in the event of inseparable mixing or combination. Insofar as we acquire ownership or co-ownership, the customer shall store the goods for us with the diligence of a prudent businessman.
In the event of the sale of the goods or the new goods, the customer hereby assigns to us as security his claim from the resale against his customer with all ancillary rights, without any further special declarations being required. The assignment shall apply including any balance claims. However, the assignment shall only apply to the amount corresponding to the price of the goods invoiced by us. The share of the claim assigned to us shall be first and foremost satisfied.
Until revoked, the purchaser is entitled to collect the assigned claims. The customer shall immediately forward to us payments made on the assigned claims up to the amount of the secured claim. In the event of good cause, in particular in case of late payment, cessation of payments, opening of insolvency proceedings, protest of a bill or justified indications of over-indebtedness or impending insolvency of the customer, the supplier is entitled to revoke the direct debit authorisation of the customer. In addition, the supplier may, after prior warning, disclose the assignment of security within a reasonable period, to utilise the assigned claims as well as to demand the disclosure of the security assignment by the customer to its customer.
Following authentication of a legitimate interest, the customer must immediately provide the supplier with the information required to assert its rights against the customer and provide the necessary documents.
During the existence of the retention of title, the customer is prohibited from pledging the goods or assigning them as security. In the case of seizures, confiscations or other dispositions or interventions by third parties, the customer must inform the supplier immediately. The resale of the goods or new goods is only permitted to resellers in the ordinary course of business and only under the conditions that payment of the equivalent value of the goods or new goods is made to the purchaser. The orderer shall also agree with the customer that the customer shall only acquire ownership with this payment.
In the event of breaches of duty on the part of the customer, in particular default in payment, we shall be entitled to demand the return of the goods or the new goods even without setting a deadline and/or - if necessary after setting a deadline - to withdraw from the contract; the customer shall be obliged to return the goods. The demand to return the goods or the new goods does not constitute a declaration of withdrawal unless this is expressly declared by us.
12. Property Rights and Copyrights
The customer shall ensure that the custom-made products commissioned by him do not infringe the industrial property rights of third parties. If claims are asserted against us by third parties due to the manufacture or delivery of the goods with the assertion of an infringement of industrial property rights, the customer shall indemnify us against all claims. In such cases, we shall only conduct defence proceedings if the customer requests us to do so with a binding declaration of assumption of costs. We are entitled to demand security on account of the legal costs.
13. Force Majeure
In the event of force majeure, we shall be released from the obligation to perform for the duration and to the extent of the effects. Force majeure is any event beyond our control which prevents us from fulfilling our obligations in whole or in part. This includes in particular fire damage, flooding and operational disruptions for which we are not responsible, in particular industrial disputes and strikes or official administrative acts as well as supply difficulties and other disruptions to performance for which we are not responsible. We shall immediately inform the other party of the occurrence and cessation of the force majeure and shall use our best endeavours to remedy the force majeure and to limit its effects to the extent possible. The information is provided in text or written form, in urgent cases by telephone. Together with the other part we will coordinate the next steps.
14. In the Event of Insolvency
If the orderer ceases his obligations to deliver or pay, or if insolvency proceedings are instituted against his assets or rejected for lack of assets, or if insolvency proceedings are instituted, we shall be entitled to withdraw from the contract to the extent not yet fulfilled at that time.
15. Data Protection & EDP
The orderer agrees that, for the purpose of processing the contractual relationship, the necessary data will be stored by us in electronic files, taking into account the requirements of statutory data protection.
16. Confidentiality
The orderer undertakes to maintain secrecy with regard to all commercial documents, financial and technical data, in particular drawings, samples or models (information), which become known to him during the term of the contract. We undertake to maintain secrecy to the same extent. The obligation begins with the first knowledge and lasts 36 months after the end of the business relationship. The obligation does not apply if the information was publicly known or generally accessible or if it was demonstrably already known to the third party. Furthermore, when a part was required to be disclosed by law or administrative act.
17. Final provisions
Verbal collateral agreements shall only apply if confirmed by us in writing or text form.
The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Lüdenscheid.
Should any provision of these GTC be or become invalid, this shall not affect the validity and enforceability of the remaining clauses. The customer undertakes to agree together with us on a replacement provision which is effective, enforceable and suitable for the purpose of the order and to protect the interests of both parties. Section 139 German Civil Code shall not apply.