General terms and conditions of business, delivery and payment
§1 Scope of application
The following business, shipment and payment conditions are valid for all contractual and other business relations including the declarations and quotations of Hermann Schnierle GmbH, Gersthofen, (henceforth referred to as Schnierle GmbH) given for the ground of these business relations, with contractors and companies, legal entities of public law and public legal fund assets (henceforth referred to as business partner). The business partner acknowledges these business conditions with the receipt of the acceptance of order and/or acceptance or delivery of the ordered goods and services. These conditions are also valid for all future business dealings with the business partner, even if not again explicitly and conclusively agreed for these business dealings. Differing conditions of the business partner and confirmations of their validity are herewith objected. They are basically ineffective and nonbinding if their validity is not explicitly confirmed in written form by Schnierle GmbH. This is also particularly valid for any divergence of this written form requirement.
§2 Quotations/Copyrights/Orders/Price marks
(1) Quotations of Schnierle GmbH are without explicitely contrary statements always nonbinding and without obligation till the receipt of our acceptance of order and are given only on the basis of the actual cost basis and miscellaneous production basis. The illustrations and drawings attached to our quotations and the stated measurements and weights serve only as explanation and are basically nonbinding. The stated final price given in a binding quotation is only valid for undivided orders and for the possibility, given by the business partner, to fulfil the complete order within four months starting from proposal submittal. Binding quotations are temporary for the period within the acceptance can be expected in regular circumstances.
(2) Commissions and orders require for efficacy the confirmation in text form given by Schnierle GmbH.
(3) Schnierle GmbH is, independent of a commission, contributions and other suggestions of the business partner, the author of the prepared drafts, drawings, reports, calculations and quotations in terms of §7 UrhG. Schnierle GmbH reserves all copyrights of these documents. The concession of easement, the consent or agreement of exploitation rights and legal transactions of author’s moral rights according to §39 UrhG are only valid in written form. Without an explicitly contrary agreement there is conceded only an ordinary easement, §31 II UrhG. The documents must not be reproduced or given to third parties without explicit approval of Schnierle GmbH, even if necessary or useful for ordering or job processing.
(4) Quotations, calculations, drawings and drafts, which are explicitly ordered by the business partner, are to be refunded at the agreed and customary in a place fee, independent of further commissioning.
(5) Price marks stated in quotations and orders always refer to net amounts plus the VAT at the respective legal amount.
§ 3 Terms of delivery/Delay/Shipments/Default in acceptance/Part shipment/Call orders
(1) Binding shipment terms and deadlines have to be explicitly agreed and stated at the acceptance of order. Otherwise Schnierle GmbH is entitled and obliged to fulfil the order within the scope of its operational possibilities without disproportionate delay.
(2) In case the order fulfillment is essentially impeded due to force majeure or occurrences not justifiable by Schnierle GmbH like especially strike, lockout, official instructions and shortage at raw material supply, even if occurred at suppliers or their sub-suppliers, the agreed shipment terms and deadlines extend or postpone for the duration of the impediment plus a decent start-up period. Schnierle GmbH informs its customer immediately about the occurrence and the estimated duration of the impediment. If the impediment lasts so long that the purpose, which is pursued with the fulfilment of the contract, cannot be achieved or would be significantly impaired, every contracting party can withdraw from the contract due to the not fulfilled part. In this case the respective part of the fulfilled order substitutes the agreed total price. Further claims are excluded. The business partner must set an adequate grace period if Schnierle GmbH does not keep agreed performance and delivery deadlines due to other reasons unless the performance or delivery deadline is determined on a calendar basis. Compensation claims of the business partner because of delay are excluded unless Schnierle GmbH or its subcontractors caused the delay with intent or gross negligence. The business partner’s right, if delay occurs, to dissolve the contract or to claim compensation due to other reasons according to legal rules remains unaffected.
(3) Place of fulfillment of all performances and deliveries of Schnierle GmbH is Schnierle factory, unless the services can only be made at the business partner’s site according to the contractually agreed type and quality. Deliveries are made without explicitly otherwise agreed, ex works or ex stocks Schnierle GmbH on account and at risk of the business partner. When deliveries are contractually agreed the business partner has to ensure that delivering vehicles can approach directly the location or warehouse, specified by the business partner, and can be unloaded there. The additional expense, which is generated for Schnierle GmbH, due to additional routes of transport or impediment and delays during unloading, are to be paid additionally separately by the business partner.
(4) The risk of accidental loss or deterioration of the subject of the contract passes to the business partner as soon as the delivery is handed over to the carrier or as soon as it has left the warehouse of Schnierle GmbH for the purpose of shipment.
(5) The risk of accidental loss or deterioration of the subject of the contract will pass to the business partner in case that the delivery or handover does not take place by the agreed date (delay in acceptance) for reasons for which the business partner is responsible, as soon as the business partner receives the notification of readiness to deliver or readiness for collection. From that moment Schnierle GmbH may additionally claim a reasonable remuneration for storage of the subject of the contract. If the delay in acceptance exceeds a period of three months Schnierle GmbH is entitled to utilize the subject of the contract, § 647 BGB, under normal market terms on account of the business partner and to cover with the proceeds its outstanding claims and costs; Schnierle GmbH is entitled to do so after a previous warning in written form.
(6) Schnierle GmbH shall be entitled to part shipment, provided that they are reasonable for the business partner and that they have been announced in advance.
(7) If agreed with the business partner that Schnierle GmbH delivers a defined quantity or number of pieces within a specified period of time and the business partner can request within the specified period of time the complete shipment or parts of the shipment on specific dates, the delivery or part delivery must be called at least 12 weeks in advance of the requested delivery date. At the expiry of the specified period Schnierle GmbH is entitled to ship without call and to charge the quantities and numbers of parts, which have not been called by then.
§4 Warranty / Liability
(1) Schnierle GmbH guarantees that their works and deliveries are free from material defects in accordance with the following regulations. Insignificant differences of surface (color and structure) resulting from the type of the used materials, do not represent any material defects.
(2) In case of justified notice of defects at works rectification free of charge will take place at Schnierle factory. The transport costs for the purpose of the rectification shall be borne by the business partner. The rectification can be refused if it is involved with disproportionate high costs in relation to the value of the works and the effects of the defect. The business partner can claim the reduction of the remuneration or can withdraw from the contract if a rectification will be refused or if at least two attempts of rectification remain unsuccessful. Any further claims shall be excluded.
(3) In case of justified notices of defects of shipments of Schnierle GmbH a subsequent delivery of faultless parts is performed free of charge. In this case the business partner is obliged to return the faulty goods to Schnierle GmbH. The costs of transport and shipment are borne by the business partner.
(4) Schnierle GmbH is entitled to replace defective parts with equivalent faultless used parts in the course of the rectification respectively subsequent delivery. The claim of the replacement by new parts does not exist.
(5) If agreed with the business partner, after identifying a defect, that he himself rectifies the defect or he himself replaces faulty parts, the costs will only be reimbursed if the performed work and other measures and the associated expenses have been released by Schnierle GmbH before the beginning.
(6) In case of notice of defects Schnierle GmbH can request from the business partner that he returns the defective delivery for the purpose of verifying at Schnierle factory or that he provides a free of charge photograph documentation of the defect.
(7) Any claims for damages - no matter on which legal argument they might be based - in particular on account of breach of contractual, pre-contractual and post-contractual obligations, delay and unlawful act against Schnierle GmbH are excluded unless the damage was caused intentionally or grossly negligent by Schnierle GmbH or its legal representatives or vicarious agents. Liability of Schnierle GmbH under the product liability law and for damage resulting from injury to life, body or health caused by negligent breach of duty of Schnierle GmbH or its legal representatives or vicarious agents, remains unaffected by this exclusion of liability.
§5 Acceptance of the merchandise / Duty to complain and notify
(1) The business partner has to accept deliveries and services immediately after the notified completion or the delivery. This shall also apply to any complete partial performances and partial deliveries. Acceptance is deemed completed if the business partner has actually used or processed the services and deliveries or parts of it.
(2) The obligations and legal consequences for the business partner of § 377 HGB apply in full, provided that the completeness is checked immediately on the basis of the delivery notes and deviations and defects are notified in text form.
(3) In the event of a difference of opinion about the existence of a defect Schnierle GmbH may use the service of a publicly appointed and sworn expert for the test. The business partner must reimburse all costs incurred by Schnierle GmbH as a result of unfounded defect complaint.
§ 6 Invoices/Default in payment
(1) All invoiced amounts, also for partial performances, will be due for immediate payment with the receipt of invoice and acceptance without any deduction if not expressly otherwise agreed. Payments by means of bill of exchange shall only be admissible on the basis of a special agreement. Cheques and bills of exchange shall only be accepted on account of payment but not instead of payment.
(2) The business partner is considered to be in default of payment if he does not settle the complete invoiced amount within the time stipulated, with receipt of the first reminder or at the end of the 30th day after the due date and receipt of invoice. As soon as the business partner is in default he shall be obliged to pay the due invoice amount with 8% points above the base interest rate. Schnierle GmbH is entitled to charge due to the effort for further reminders after occurrence of default a lump sum of € 10,00 for each reminder unless the business partner proves that no or less expense has arisen for Schnierle GmbH for further reminders. This does not affect any other claims for compensation for delayed performance. If the business partner does not respect the payment agreement, Schnierle GmbH shall be entitled to set a grace period with the threat of rejection and to withdraw from the contract after its expiry and to claim for damages.
(3) In the event that the business partner’s liquidity or creditworthiness deteriorate substantially after the start of contract, Schnierle GmbH may demand appropriate prepayments or sureties with fixing a deadline. If these are not or not completely made within the time agreed, Schnierle GmbH shall have the right to withdraw from the contract and to claim compensation for damages.
§7 Reservation of proprietary rights, extended reservation of proprietary rights
All delivered goods and performances remain Schnierle GmbH's property until the complete payment of the invoices and in the case of a current account agreement until the complete payment of the current account balance. The business partner is given the revocable right to sell or process the deliveries within the framework of proper business operations. In the case of the sale of the reserved proprietary, the business partner assigns to Schnierle GmbH his claims against his buyer with all ancillary rights; Schnierle GmbH accepts this assignment. On request the business partner must name to Schnierle GmbH the buyers of the reserved proprietary, the respective amount of the claims and must provide copies of the contractual documents, delivery notes and invoices. The business partner shall have a revocable right to collect the assigned claims against its client. In that case, he has a duty to transmit the collected amounts immediately to Schnierle GmbH until the complete payment of its claims. The business partner must sufficiently insure the goods for the duration of the reservation of proprietary against burglary, theft, fire and water. In the event of the insurance claim the business partner assigns all insurance claims, up to the outstanding amount, to Schnierle GmbH; Schnierle GmbH accepts this assignment. The pledging or assignment as security of the goods, which are under reservation of proprietary rights, are forbidden. In the case of pledges of the goods to which this right of retention of title applies, the business partner is obliged to inform Schnierle GmbH immediately in writing and has to inform the pledgees of the reservation of proprietary rights. If the goods under reservation of proprietary rights are processed by the business partner, the new product, thus produced by the processing, shall take the place of the goods under reservation of proprietary rights.
§8 Provided items / delivery
If the business partner has assigned Schnierle GmbH to process equipment and machinery, especially vehicles, boots and coaches, he has to guarantee the technical security of the equipment and machinery during the order completion. He is required to compensate all damages and additional expenses, incurred by Schnierle GmbH due to technical errors which have not been objects to contractual instruction, independently of his fault.
If Schnierle GmbH obtains from a business partner goods and other objects which are intended for resale, process or installation into products of Schnierle GmbH, the following additional provisions apply:
(1) Orders issued to the supplier can also become effective by written order confirmation of the business partner. If the order confirmation of the business partner differs from a former order confirmation of Schnierle GmbH, the difference is contradicted and the content of the order confirmation of Schnierle GmbH shall be effective, unless the difference is explicitly approved in writing by Schnierle GmbH.
(2) Agreed delivery dates are always binding. This also applies to delivery dates for partial deliveries, given by Schnierle GmbH, if it is agreed that the business partner delivers a specified quantity within a specified time period and it is left to Schnierle GmbH to request on specific dates the whole delivery or parts of the delivery within the specified time period. The business partner must indicate a delay in delivery immediately if the risk is clear that a delivery date is not able to be met.
(3) Deliveries and part deliveries must be announced 24 to 36 hours in advance to the purchasing department or the goods receiving department of Schnierle GmbH. Delivery has to be made generally only during the opening hours of the goods receiving department of Schnierle GmbH. Deliveries, made after the closing of the goods receiving department, shall be considered as received on the next working day.
(4) The supplier will be in default in case the delivery date exceeds. He is required to compensate Schnierle GmbH all damages and additional costs resulting from the delay. Schnierle GmbH is entitled to charge the supplier for the effort to change the production planning, due to the delay, for each day of the delay a lump sum of € 150,00 up to the maximum amount of 10% of the value of the delayed delivery, unless the supplier can prove that Schnierle GmbH incur no or less expenses. The claim for the compensation of other damages for delay shall remain unaffected by this regulation. Objections to an unconditionally acceptance of goods of delayed deliveries are excluded.
(5) The supplier guarantees that the delivery items are free of material defects. Deliveries shall be inspected by Schnierle GmbH, according to recognised sampling procedures, within two working days after delivery. Discovered defects must be reported immediately. An approval of not discovered other defects is excluded if the later discovered other defect is reported immediately after discovery.
(6) In the case of faulty goods the supplier shall, at option of Schnierle GmbH, remedy the defects (rework) or deliver similar non-defective goods (subsequent delivery). Should the rework fail twice or a subsequent delivery is defective again, Schnierle GmbH is entitled to remedy the defect itself or to have it rectified by third parties and to demand the reimbursement of the costs thereby incurred, without further notice. Schnierle GmbH has the same right if, after notice of defect, there are substantial grounds of concern that the supplier is not willing or not able to provide supplementary performance in the short-term and therefore considerable damages and additional costs are likely. This applies if a specified deadline for supplementary performance has expired caused by the supplier.
(7) The supplier warrants that with delivery, processing or resale of the delivery items no property rights and patents of third parties are being infringed. Regardless of his fault, the supplier has to release Schnierle GmbH from all third-party claims and to reimburse all costs due to the defence against claims in the event that Schnierle GmbH is subjected to third party claims relating to such infringements. The right to assertion regarding further damages due to such infringements and their consequences remains unaffected by this.
(8) Unless otherwise expressly agreed, warranty claims of Schnierle GmbH on grounds of material defects become statute-barred after 24 months from the delivery of the end products made from the delivered goods, latest within 36 months from delivery.
(9) The supplier is obliged to indemnify Schnierle GmbH against any claims of third parties in line with the ProdHaftG and to reimburse all costs due to the defence against claims if delivered goods are defective in line with § 3 ProdHaftG or give reasons, when properly used, for such defects on end products of Schnierle GmbH. If a recall is necessary or officially ordered due to such a defect, the supplier has to reimburse Schnierle GmbH all costs and expenses thereby incurred. The limitation of these claims is excluded before the expiry of claims against Schnierle GmbH in line with § 13 ProdHaftG.
(10) The supplier has to send a separate invoice per each delivery note separately from the delivery for each delivery or service. The amount invoiced will be due within 30 days of receipt of invoice, unless otherwise agreed.
(11) The supplier has to treat carefully, to maintain and – on demand – to insure provided documents, data, DV-information, software, materials, type related tools, equipment and objects (e.g. samples and models) - hereinafter called “material” – which Schnierle GmbH provided to the supplier for the execution of an order. Schnierle GmbH is exclusively entitled to all these rights except order-related usage rights. The material may neither be used nor duplicated for any other means than to execute the order, nor be made accessible to third parties without a written permission. Products, made from this material, according to our specifications or in whose development we have been considerably involved may only be transmitted to third parties with our written permission. If the supplier acquires from Schnierle GmbH or at their expenses from third parties such material specifically for the purpose of execution of order or if it is agreed that Schnierle GmbH can buy or must buy the material latest after the order execution, the above regulations apply accordingly.
§ 10 Miscellaneous
(1) For all business relations the law of the Federal Republic of Germany applies. The application of the uniform UN Sales Convention (CISG) is expressly excluded.
(2) Augsburg is the place of jurisdiction for all disputes arising from orders and contracts.
(3) The business partner agrees that Schnierle GmbH stores electronically and processes and uses for own purposes and its associated companies the data of the business partner collected within the ambit of the business relationship.