Terms of delivery, installation and payment
of Erich Schäfer GmbH & Co. KG
Table of contents:
I. General conditions
§ 1 General information/scope
§ 2 Conclusion of contract
§ 3 Price/terms of payment
§ 4 Delivery time/installation date
II. Terms of sale
§ 5 Transfer of risk/terms of delivery
§ 6 Retention of title
§ 7 Export restrictions/EU export conditions
III. Terms of installation and services
§ 8 General information
§ 9 Duty to cooperate, customer performance
§ 10 Installation period
§ 11 Acceptance
§ 12 Passing of property regarding used parts released during installation
§ 13 Compensation from the customer
IV. Warranty and liability
§ 14 Warranty
§ 15 General limitation of liability
V. Final provisions
§ 16 Place of performance, choice of law, venue
§ 17 Severability clause
I. General conditions
§ 1
General information/scope
1.
These terms and conditions (TC) apply to companies, legal entities governed by public law and special funds governed by public law. Deliveries and services provided by Erich Schäfer GmbH & Co. KG are made exclusively subject to these conditions. This shall also apply to all future business relations between Erich Schäfer GmbH & Co. KG and its customers even if these Terms and Conditions are not explicitly referred to again. These Terms and Conditions shall be regarded as agreed and binding on receipt of the delivery or the service at the latest.
2.
The Terms and Condition of Erich Schäfer GmbH & Co. KG form part of all delivery relations. Any conflicting or deviating terms of procurement from customers shall not be accepted. They shall not form part of the delivery relation.
§ 2
Conclusion of contract
1.
Offers from Erich Schäfer GmbH & Co. KG are not binding as long as the offers have not been designated as binding.
2.
Orders shall only be considered accepted when Erich Schäfer GmbH & Co. KG has confirmed acceptance of the order in writing. Where an order given orally, by telephone or email was mistakenly not confirmed, the invoice shall be regarded as confirmation of the order.
3.
All prices are net ex works excluding costs for packaging, loading, freight, customs, insurance and installation, unless agreed otherwise.
§ 3
Price/terms of payment
1.
If no prices were agreed in writing for Erich Schäfer GmbH & Co. KG and where a price list for the respective product or service exists, the prices from the price list from Erich Schäfer GmbH & Co. KG shall apply. Otherwise the standard prices shall apply.
2.
The prices are net prices excluding VAT provided that the VAT is not stated separately in the offers.
3.
The invoice amount is payable net within 30 days from date of invoice without deductions if no other terms of payment were agreed.
§ 4
Delivery time/installation date
1.
The delivery times and installation dates stated by Erich Schäfer GmbH & Co. KG are planned dates. These dates shall be regarded as approximations unless meeting these deadlines was expressly guaranteed. The start of installation periods and promised delivery dates requires that all technical questions and the details of the customer's duty to cooperate have been clarified and agreed.
2.
Delayed deliveries and services due to force majeure and due to events which substantially complicate delivery or make it impossible shall entitle Erich Schäfer GmbH & Co. KG to postpone the delivery and service by the duration of the impediment plus a reasonable start-up time or, in case of a longer delay of the delivery or service, to fully or partially withdraw from the contract upon advance notice. Force majeure shall also include material shortage, operational breakdowns, strike, lock-out, personnel shortage, shortage of means of transport, official orders imposed on Erich Schäfer GmbH & Co. KG or its subcontractors as well as impediments due to German, USA or other applicable national, EU or international provisions of foreign trade law provided that Erich Schäfer GmbH & Co. KG is not responsible for these impediments.
3.
Erich Schäfer GmbH & Co. KG shall be entitled to make partial deliveries and render partial services provided that this does not conflict with a prevailing economic interest of the customer.
II. Terms of sale
§ 5
Transfer of risk/terms of delivery
1.
Risk shall transfer to the customer as soon as the delivery has been handed to the person carrying out the transport or when it has left the company facilities or the warehouse of Erich Schäfer GmbH & Co. KG for the purpose of shipping. If delivery is delayed or becomes impossible due to circumstances for which Erich Schäfer GmbH & Co. KG is not responsible, risk shall pass to the customer when the customer has been notified of readiness for shipment by Erich Schäfer GmbH & Co. KG.
2.
Provided that the order confirmation does not stipulate otherwise, delivery “ex works” in line with EXW INCOTERMS 2010 shall apply. As a rule, delivery is uninsured and at the customer's risk. On request, Erich Schäfer GmbH & Co. KG can insure the goods for transport; the costs for the insurance shall be paid by the customer.
§ 6
Retention of title
1.
The goods shall remain property of Erich Schäfer GmbH & Co. KG until all claims, including secondary claims, claims for damages and cashing in of checks and bank drafts have been paid in full.
2.
The retention of title shall remain even when individual claims by Erich Schäfer GmbH & Co. KG are still open or were included in a current invoice and the account was balanced and accepted.
3.
Where goods subject to retention of title are processed into a new movable object by the customer, this processing shall be carried out for Erich Schäfer GmbH & Co. KG without any responsibilities arising from this for Erich Schäfer GmbH & Co. KG. The new object shall become property of Erich Schäfer GmbH & Co. KG. In case of processing, mixing or blending with goods which are not property of Erich Schäfer GmbH & Co. KG, Erich Schäfer GmbH & Co. KG shall acquire part ownership of the new object at the ratio between the invoiced value of the goods subject to retention of title and the total value.
4.
The customer shall be entitled to sell on, further process or install the goods subject to retention of title only under consideration of the following stipulations and provided that the claims in line with item 6 actually pass to Erich Schäfer GmbH & Co. KG.
5.
The customer's authority to sell, process or install goods subject to retention of title shall end with revocation by Erich Schäfer GmbH & Co. KG due to a lasting deterioration of the customer's financial situation, but at the latest with cessation of payments from the customer or with application or institution of bankruptcy or composition proceedings into their assets.
6.
With this the customer shall assign the claim with all subsidiary rights from the resale of the goods subject to retention of title – including any demands for payment on balance – to Erich Schäfer GmbH & Co. KG.
If the goods were processed, mixed or blended and if Erich Schäfer GmbH & Co. KG has acquired part ownership to the amount of its invoiced value, Erich Schäfer GmbH & Co. KG shall be entitled to the sale price claim proportionate to the value of their rights to the goods. If the goods subject to retention of title were installed in a property/building the customer shall already now assign the claim for remuneration resulting from this or from the resale of the property/building to the value of the invoiced amount of the goods subject to retention of title with all subsidiary rights including that to granting of a trust mortgage with priority over others.
If the customer has sold the claim in the framework of non-recourse factoring, the claim from Erich Schäfer GmbH & Co. KG shall become payable immediately and the customer shall assign the claim taking its place against the factor to Erich Schäfer GmbH & Co. KG and immediately transfer the sales proceeds to Erich Schäfer GmbH & Co. KG. Erich Schäfer GmbH & Co. KG shall accept this assignment.
7.
As long as the customer keeps up with their payment obligations they shall be entitled to collect the assigned claims. The entitlement for collection shall lapse in case of revocation, but at the latest in case of default in customer payments or in case of substantial deterioration of the customer's financial situation. In this case the customer shall authorise Erich Schäfer GmbH & Co. KG to inform the receiving parties about the assignment and to collect the claims themselves. On request, the customer is obligated to provide Erich Schäfer GmbH & Co. KG with a detailed list of the claims to which the customer is entitled including name and address of the receiving parties, amount of the individual claims, invoice date, etc. and to provide Erich Schäfer GmbH & Co. KG with all required information for asserting the assigned claims and to allow verification of this information.
8.
If the value of the securities in place for Erich Schäfer GmbH & Co. KG exceed the total of their claims by more than 10 per cent, Erich Schäfer GmbH & Co. KG shall be obligated to release securities of their choosing pro tanto on request of the customer or a third party affected by the excess securities of Erich Schäfer GmbH & Co. KG.
9.
Mortgaging or chattel mortgaging of the goods subject to retention of title or the assigned claims are not permitted. Erich Schäfer GmbH & Co. KG shall be informed about any seizures of assets, stating the pledgee.
10.
If Erich Schäfer GmbH & Co. KG takes back the delivery item due to retention of title, this shall only constitute a withdrawal from the contract if Erich Schäfer GmbH & Co. KG has declared this expressly. Erich Schäfer GmbH & Co. KG shall be entitled to take payment from the returned goods subject to retention of title by private sale.
11.
The customer shall store the goods subject to retention of title for Erich Schäfer GmbH & Co. KG free of charge. The customer shall be obligated to insure these goods for common hazards such as fire, theft and water damage to the usual extent. With this, the customer shall assign their claims of compensation to which they are entitled due to damage of the a.m. type from insurance companies or other parties responsible for damages to Erich Schäfer GmbH & Co. KG to the invoiced amount of the goods. Erich Schäfer GmbH & Co. KG shall accept the assignment.
12.
All claims as well as the rights from the retention of title in all special forms stipulated in these conditions shall remain valid until the complete release from contingent liabilities which Erich Schäfer GmbH & Co. KG has entered into in the customer's interest.
§ 7
Export restrictions/EU export conditions
The customer declares and asserts that the customer and any third parties who are engaged or paid by the customer will comply with all valid export control measures, economic sanctions, embargoes and provisions and stipulations of DCC export regulations, to which export, re-export as well as marketing and sales of the DCC products are subject.
The customer furthermore declares and assures that neither the customer nor any third parties who are engaged or paid by the customer in connection with the sale or marketing of the products of DCC will export or re-export the products directly or indirectly into countries where legislation or provisions by the US government require an export licence or other license. The same shall apply to any country, any person and any legal entity into or to which such an export or re-export is prohibited by current US law or provisions or by the DCC export regulations.
III. Terms of installation and services
§ 8
General information
1.
These terms of installation apply to installation, maintenance or other services taken on by Erich Schäfer GmbH & Co. KG unless deviating agreements were made in individual cases.
2.
The customer undertakes to only hand over confidential information and documents from Erich Schäfer GmbH & Co. KG to third parties with the consent of Erich Schäfer GmbH & Co. KG.
§ 9
Duty to cooperate, customer performance
The customer shall support personnel with carrying out their tasks at the customer's expense.
§ 10
Installation period
The implementation period shall be regarded as observed if the product is ready for acceptance by the customer or a third party nominated by the customer before expiry of the period.
§ 11
Acceptance
1.
The customer is obligated to accept the product as soon as they have been informed about completion. Acceptance shall be carried out by the customer or by a third party nominated by the customer unless agreed otherwise. With acceptance, risk shall pass to the customer and the liability of Erich Schäfer GmbH & Co. KG for obvious defects shall be cancelled in as far as the customer has not reserved the right to assert a specific defect. A test run by the customer shall also be regarded as acceptance.
2.
The customer shall only be entitled to reject acceptance if the faults indicated by them cancel or substantially diminish the normal or contractually stipulated use. Otherwise the customer shall be obligated to accept the work with the reservation of correction of faults.
3.
If acceptance is delayed due to reasons which Erich Schäfer GmbH & Co. KG or the installation personnel are not responsible for, acceptance shall be regarded as completed after two weeks after notice of completion of installation.
§ 12
Passing of property regarding used parts released during installation
Property of machine parts which are replaced by new parts during installation in the framework of an expressly agreed replacement delivery shall pass to Erich Schäfer GmbH & Co. KG upon dismounting of the old part.
§ 13
Compensation from the customer
If the devices or tools provided by Erich Schäfer GmbH & Co. KG are damaged due to reasons which Erich Schäfer GmbH & Co. KG or the personnel involved are not responsible for or if these are lost due to reasons which Erich Schäfer GmbH & Co. KG or the personnel are not responsible for, the customer shall be liable to pay compensation.
IV. Warranty and liability
§ 14
Warranty
1.
The products and services of Erich Schäfer GmbH & Co. KG are free from (material) defects if they exhibit the agreed quality upon passing of risk or upon acceptance. This shall also apply in case of insignificant faults.
2.
Justified warranty claims trigger subsequent performance. Subsequent performance is by way of rectification of defects or replacement at the customer's place of business, at the option of Erich Schäfer GmbH & Co KG. The customer must accept the necessary expenses for removing the defective item and installation or attachment of the repaired item (that has been delivered free of defects), if and to the extent that Erich Schäfer GmbH & Co. KG informs the customer that such expenses are necessary in the interest of reducing costs, and in return the costs shall be reimbursed to the customer. If subsequent performance fails twice, the customer may withdraw from the contract or reduce the purchase price.
3.
Incorrect information for use shall not give rise to material warranty claims with regard to the products from Erich Schäfer GmbH & Co. KG. No warranty for the correctness of advertising statements by suppliers/material suppliers shall be accepted.
Justified warranty claims shall be subject to subsequent performance. Subsequent performance shall be carried out through correction of faults or replacement at the customer site at the discretion of Erich Schäfer GmbH & Co. KG. If subsequent performance fails twice the customer shall be entitled to back out of the contract or to reduce the purchase price.
4.
Warranty claims and recourse claims due to defect shall expire after one year after delivery of the products, for construction work within the legally stipulated period.
§ 15
General limitation of liability
1.
In all cases where Erich Schäfer GmbH & Co. KG is obligated to pay compensation due to contractual or legal bases and where liability has not been effectively excluded in line with the aforementioned provisions, Erich Schäfer GmbH & Co. KG shall only be liable – except in cases of infringement of an essential contractual obligation – in as far as the liability of Erich Schäfer GmbH & Co. KG is based on intent or gross negligence. In case of gross negligence, liability shall as a rule be limited to the compensation for the damage which was reasonably foreseeable at the time of conclusion of the contract. Erich Schäfer GmbH & Co. KG shall only be liable for liability-related behaviour in the aforementioned sense with limitation to the direct damage and with limitation to the order value of to the supplied product which caused the damage.
2.
Compulsory product liability legislation and liability due to injury, death or harm to health remain unaffected. Where a claim is made against Erich Schäfer GmbH & Co. KG due to a case of product liability which is based on the further processing of the goods from Erich Schäfer GmbH & Co. KG, the customer shall immediately release Erich Schäfer GmbH & Co. KG from any claims for damages upon first request.
V. Final provisions
§ 16
Place of performance, choice of law, venue
1.
Unless otherwise indicated in the order confirmation, place of performance shall be the headquarters of Erich Schäfer GmbH & Co. KG.
2.
The legislation of the Federal Republic of Germany relevant to the legal relationship between national parties shall exclusively apply to all legal relations between Erich Schäfer GmbH & Co. KG and the customer. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded. The application of any regulations of international private law of the Federal Republic of Germany which provide for the application of the CISG are also excluded.
3.
Any disputes arising from the legal relations with customers of Erich Schäfer GmbH & Co. KG shall be settled before a competent court of law in Siegen or at the customer headquarters at the discretion of Erich Schäfer GmbH & Co. KG.
§ 17
Severability clause
If individual provisions of a contract between Erich Schäfer GmbH & Co. KG and the customer are ineffective or infeasible or become ineffective or infeasible after conclusion of the contract this shall not affect the effectiveness of the remaining contract. The ineffective or infeasible provision shall be replaced by an effective or feasible provision which is as close as possible to the economical objective that the parties to the contract had intended with the ineffective or infeasible provision. The aforementioned provisions shall also apply in case that the contract proves to be incomplete. § 139 BGB (German Civil Code) shall not apply.
This text in German language is the only legally binding version of the Terms and Conditions of Sale and Delivery of Erich Schäfer GmbH & Co. KG. Any existing translation into English is only intended for information purposes and is not legally binding.
Revision: November 2019
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