General terms and conditions (sales terms)
SCHAKO Klima-Luft Ferdinand Schad KG
These Terms and Conditions shall apply to all agreements concluded between the Buyer and SCHAKO KG on the manufacture and delivery of goods. They shall also apply to all future business relationships even if they are not expressly agreed upon once again. Any conditions by the Buyer deviating therefrom, for example purchase conditions, which we have not expressly acknowledged, are not binding for us, even if we have not expressly objected to them in writing. The conditions as set forth herein below shall also apply in the event that we, being aware of opposing or deviating conditions on the part of the Buyer, carry out the order without reservation. All agreements between us and our customers shall always be put into writing, and the customer shall in each case receive a confirmation of order. Our offers are directed to commercial customers within the meaning of BGB (German Civil Code) Section 14 (B2B transactions); we do not take part in dispute resolution procedures before consumer arbitration bodies.
II. Placement and acceptance of orders
A purchase contract is deemed concluded with our written order confirmation or with execution of a purchase order in reference to the applicability of these General Terms and Conditions, which are provided in the price list and in the Internet (www.schako.de) and which will be supplied by mail on request. Our quotations remain binding for a period of four weeks. Otherwise they are without commitment. We reserve the right to implement modifications of design or form during the delivery period in the interests of technological improvement or in response to requirements imposed by law or by approval authorities provided that any such changes do not materially alter the delivered object and may be deemed acceptable to the Buyer. They do not change anything with regard to the quality of the supplied object. Neither advice and recommendations nor ancillary verbal agreements form a constituent part of any quotation. These may only be considered binding and effective where confirmed by us in writing. All illustrations, plans, project processing, drawings, cost estimates, technical data, catalogue and brochure contents made available to the Buyer on electronic data carriers or by electronic transmission remain our intellectual property and subject to our copyright The duplication of such data or making it available to third parties without our prior consent is a punishable offence and shall render the perpetrator liable to compensation for damages and to reimbursement of futile expenditure. This shall apply in particular to plans or project processing documentation drawn up by us. Specified measurements are approximations only, excepting where indicated as binding in the quotation or product description. Specifications provided in accordance with ISO, DIN, VDI etc. and information regarding quality and properties may only be deemed binding where these originate from us and where specific reference is made to them. By placing a purchase order, the Buyer states his binding intention to purchase the ordered item. Purchase orders may be placed with us in writing or by electronic means. A confirmation of receipt does not constitute a confirmation of order or binding acceptance of a purchase order.
III. Delivery period, delay in acceptance, cancellation costs
The delivery period begins on dispatch of our confirmation of order, but not before the provision of any documentation, approvals or releases to be furnished by the Buyer, nor before receipt of any agreed down payment. The delivery period is deemed to have been adhered to provided the purchased goods have left the factory or notification of readiness for dispatch has been issued. Just-in-time or fixed transactions shall only be deemed legally valid subject to the conclusion of a separate agreement and our written confirmation. Our agreed delivery period shall also be subject to correct and prompt deliveries to us by our suppliers; a reasonable extension of delivery periods shall be admissible within the framework of industrial disputes, in particular of strikes and lock-outs, and in the event of any unforeseen impediments beyond our control, such as operational breakdowns or delays in the supplies of essential materials, provided such impediments materially influence the delivery of the purchased goods. This shall also apply in the event that our subcontractors experience similar circumstances. Neither shall we be deemed responsible for the above-mentioned circumstances should these occur during an already existing delivery delay. We undertake to inform the Buyer as soon as possible of the start and end of such impediments in important cases. Should the Buyer incur damage as a result of a different delay for which we are responsible which is the result neither of intent nor of gross negligence, or should we be unable to perform, in each case the Buyer shall be entitled to compensation for each completed week of the delay of 0.5%, but no more than 5% in total of the price for that part of the delivery which could not be usefully commissioned as a result of the delay. Any further claims to compensation for damages on the part of the Buyer due to delayed delivery and claims to compensation for damages in lieu of performance which exceed the above-mentioned limits are excluded in all cases of delayed delivery, also after expiry of any period of grace granted to the Supplier to deliver. If delivery is delayed upon request by the Buyer, he shall bear the costs due to storage of at least 1/100 of the invoiced amount per month, commencing with day of notification of readiness of the goods for shipment. Each of the contractual parties retains the right of proof of higher or lower storage costs. If the Buyer is in delay of acceptance, we are entitled to otherwise dispose of the delivery items following unsuccessful expiry of the deadline. Items, also partial deliveries or partial quantities, which are reported as ready for dispatch and to which in the absence of any contrary instruction we are entitled following completed production must be called forward and accepted by the Buyer without delay. Otherwise, we shall be entitled at our discretion to dispatch such items or store them at the expense and risk of the Buyer and to invoice the Buyer immediately. In these and all other cases, in the absence of any contrary instruction, we shall determine the transport route and means as well as the carrier or shipping agent. Should the Buyer cancel a placed order without justification, we shall be entitled to claim compensation for damages of 10% of the order value to cover the handling and processing costs of the order and lost profit, without prejudice to the possibility of higher compensation. The Buyer shall be granted the right to provide evidence of lower damages.
IV. Prices, packaging, payment
Prices shall be quoted in Euro, and in the absence of any special agreements, shall be applicable ex works, non-inclusive of packaging, freight and unloading, plus the statutory rate of VAT. Packaging is charged at self costs. Prices stated are binding until the publication of new price lists. Where down payments are made, VAT at the rate specified by Value-Added Tax legislation shall be charged in addition. Prices correspond to the cost situation at the time of conclusion of contract. Should external costs or essential cost factors such as collectively agreed wages change prior to the agreed delivery date, we shall be entitled to adjust pricing levels by unilateral declaration. Unless otherwise agreed, all payments shall be made to us free of any charges or deductions. A 2% cash discount shall be granted on payments made within 10 days of the date of invoice. If following readiness for dispatch / dispatch / handover and invoicing, no payment is made within 30 days, the Buyer shall be deemed to be in default and liable for interest payments in accordance with Art. 288 of the German Civil Code (BGB). Cheques and bills of exchange only count as payment once they have been cashed. The acceptance of bills of exchange is subject on principle to our prior written consent. On acceptance of a bill of exchange, the bank discount and collection charges shall be invoiced immediately for immediate advance payment in cash. The acceptance of a bill of exchange shall not entail deferment of payment. We reserve our right to demand cash payment against return of the bill of exchange at any time. In the event of discontinued payments, insolvency, default, protested cheques or bills of exchange, all other existing open invoices arising from our business relationship with the Buyer shall fall due for immediate payment and all discount agreements shall be cancelled. We shall also be entitled to withhold all further services and deliveries for performance against advance cash payment only. This shall apply also in the event of circumstances which give rise to justified doubt as to the creditworthiness of the Buyer (collection orders, insolvency applications etc.). In all such cases, we may, at our own discretion, withdraw from the contract without incurring any claims against us on the part of the Buyer. In such an event, the Buyer hereby authorises us to reclaim goods subject to reservation of title.
V. Acceptance, passing of risk
The Buyer is obliged to accept the ordered goods. In the absence of any contrary agreement, handover shall take place at the supplying factory. In case of sale by delivery, the goods are packaged in accordance with customary business practice. In this case, risk passes to the Buyer on delivery to the forwarding agent or carrier or any other party commissioned to transport the goods. If the Buyer is not a business enterprise, risk passes to the customer on completion of delivery. The Buyer is not entitled to demand the cheapest possible method of transport. On request, the goods may be additionally insured against risk of breakage, fire, theft and transport damage at an extra charge. A delay in acceptance and refusal of performance shall be deemed equivalent to completion of transfer.
VI. Duty to notify defects, duty of inspection
The Buyer is entitled to inspect the ordered item within 5 days of receiving notification of readiness for dispatch or any other notification at the handover location. Only goods which are flawless and which have been duly counter-checked are permitted to leave our production. Delivered items shall be inspected immediately for damage following. Completed delivery to the intended destination is deemed equivalent to handover. Any discovered defects shall be reported and described according to customary business practice in writing or by e-mail within no more than 5 working days. The Buyer shall grant us the right of Immediate inspection of the claimed damage. The duty of inspection shall extend not only to obvious transport damage but also to function tests of all mechanical parts including seals. Obvious defects may not be reported and acknowledged at a later date as concealed defects. Should the Buyer fail to inspect the goods and provide notification of any defect within the above deadline, but instead processes or treats the goods or installs them into a building without prior inspection, the Buyer shall forfeit any right to claim under the terms of the warranty. The same shall apply in the event of any modification or intervention to the delivered goods. Until such time as payment has been made in full and the items are utilised by processing, treatment or installation, the Buyer shall ensure that they are stored in dry conditions and protected from any type of damage. The Buyer shall furthermore ensure strict compliance with all regulations outlined in approval or test reports, installation regulations and rules of craftsmanship in utilisation of the supplied goods. Failure to comply with these regulations will result in forfeiture of any right to claims under the warranty and oblige the Buyer to redeem us against third party claims of any description.
VII. Offsetting, withholding payments
Offsetting of payments is only admissible where counterclaims have been established by due legal process or have been acknowledged by us in writing. A right to withhold payments may only be asserted where the relevant counterclaims relate to the same order.
VIII. Reservation of title
We reserve title to delivered items up until such time as they have been paid for in full, and in the event of on-going business relationships up until settlement of all claims arising. Should the Buyer be in breach of contract, in particular by default of payment, after issuing the relevant warning we shall be entitled to claim return of the delivered item and the Buyer shall be obliged to duly surrender the item to us. Assertion of our reservation of title and the seizure of delivered items by us shall not constitute a withdrawal from the Agreement, unless the stipulations of the Consumer Credit Act are applicable or the Buyer is not a business enterprise. The Buyer is obliged to treat goods subject to reservation of title with due care and to inform us in any event of damage, change of possession or location, destruction, intended or successful accessing by third parties and the instigation of insolvency proceedings without delay, providing a written indication of all data required for the assertion of our rights. Our goods may neither be pledged nor made over by way of security by the Buyer. Enforcement officers or third parties shall be informed of our title. The Buyer shall inform us without delay should the reserved goods be seized, pledged or otherwise disposed of by third parties, providing all information and documentation necessary for safeguarding our rights. In the event of conduct in breach of contract, we shall be entitled to take possession of reserved goods and to demand compensation for damage. The following ruling shall furthermore apply to businessmen, entities under public law or special funds under public law: The Buyer is entitled to resell the delivered items in the ordinary course of business, but in so doing hereby assigns all claims equivalent to the purchase price agreed between us and the buyer including VAT which accrue to the Buyer on resale (also within the framework of works agreements or contracts governing the supply of work and materials), independently of whether the delivered items are resold in a processed or unprocessed condition. The Buyer shall be entitled to collect these claims on our behalf from the time of their assignment until such time as this entitlement is revoked by us. This shall not affect our authority to disclose the claims and collect them on our own behalf. If the Buyer agrees a prohibition of assignment or accepts an impediment to assignment of the claim, we must be informed without delay. In such cases, disposal of the goods without our consent is inadmissible. We undertake not to collect the claims as long as the Buyer continues to duly meet his payment obligations and is not in default of payment. However, should this be the case, we may demand that the Buyer makes known the assigned claim to his creditors, provides all information necessary to permit collection of the claim, surrenders the necessary documents, informs his creditors (third parties) of the assignment and instructs the latter to make their payment to us. Any processing or conjoining of the goods by the Buyer is performed on our behalf. If delivered items are processed together with other items not belonging to us, we automatically acquire co-title relative to the proportionate value represented by our goods in the newly created item at the time of processing. If the delivered items are inseparably conjoined with items not belonging to us, we automatically acquire co-title to the new items relative to the proportionate value represented by our goods in the newly created conjoined items. The Buyer shall safeguard our co-title on our behalf. These reservations shall be made known to any client intending to evoke an assignment prohibition or impediment, as shall the fact that we have reserved our right of removal in the event of non-payment prior to conclusion of a contract. The Buyer undertakes not to assign all claims against his client to the above extent to third parties. In the event of a blanket assignment, the Buyer shall declare its derogation in as far as our rights are affected, and shall instruct the blanket assignee to make payment to us to the value of the goods subject to reservation of title. The Buyer is not entitled to dispose of goods subject to reservation of title or to pass them on to affiliated companies within the framework of a clearance sale. Delivered items may neither be pledged nor made over by way of security. Breach of this clause is a punishable offence. We undertake to release securities on request to the degree that these exceed the value of as yet unpaid claims to be secured or delivery agreements by more than 20%. SCHAKO is entitled to reclaim reserved goods on the basis of this agreement should the Buyer be in breach of its obligations. This shall not constitute a withdrawal from the Agreement. It shall permit SCHAKO to use the object as security by offsetting against the purchase price owed. In the event that the debtor is declared insolvent, SCHAKO shall be entitled to exercise rights of segregation and recovery in any event on goods qualifying as or acknowledged by the debtor as subject to reservation of title.
IX. Warranty, breach of contract, liability
For defects due to faulty material or workmanship, we shall provide replacement for 2 years from delivery, excluding any further claims (e.g. reimbursement of costs for dismounting and remounting, etc.) as we see fit by redelivery at no charge, as soon as the defective delivered article has been returned to us, or by repair on site. We shall not be liable for damage caused by circumstances occurred after the passing of risk, in particular for damage occurring as a result of unsuitable storage conditions (outside 10- 50 degrees Celsius and/or 40 – 70% relative humidity), of faulty or inadmissible product use, irregular installation, commissioning and maintenance, nor for damage occurring from natural wear, abrasion, exposure to steam, seawater, chemical, electrical or electrochemical environments, overloading, use of incorrect accessories or spare parts or materials, coupling to third party components or systems as well as interventions of all manner regarding the supplied quality of the purchased goods etc. Solely our product description or an assurance of suitability for a particular application provided in the confirmation of order shall be deemed to constitute an agreement of quality. Goods with defects or parts to be replaced must be returned to us freight unpaid to allow us to inspect them and have a supplementary performance put into place, if required. If reworking fails or if supplementary performance is impossible, the Buyer is entitled to withdraw from the Agreement, whereby the performance of both parties is reversed. Claims for damages or subsequent damages are excluded, unless caused by intent or gross negligence. The provision of the relevant proofs is incumbent on the Buyer. In the case of third party products from or defects which occur as a result of such products, our liability is limited correspondingly. To this extent, we shall also be entitled, in exoneration of any obligations on our part arising as a result, to assign our claims against our supplier to the Buyer. The Buyer shall not be entitled to assign claims arising on the basis of warranty and product liability. Any such assignment would be invalid vis-à-vis us. In respect of electrical or pneumatic drive and control systems, VDE and VDMA guidelines shall apply exclusively. Maintenance and confirmation intervals must be adhered to. Any claims for compensation of damages arising based in tort are excluded, excepting where damage was caused with intent or by gross negligence. This applies also to our assistants and vicarious agents. We are also unable to accept liability for damage incurred not at the delivered item itself (e.g. personal injury, material and property damage of all kinds, direct or indirect consequences, lost profits, production stoppages, operational standstill costs), excepting in cases of culpable violation or where we, the proprietor or our corporate entities are guilty of intent, gross negligence or malice. In the event of culpable violation of material contractual obligations or duties, we shall be liable in cases of gross negligence by non-managerial employees and of slight negligence only to compensate for damage which is contractually typical and could reasonably have been foreseen. Damages in any event are limited to the relevant cover of the operational third-party liability insurance. The above applies also in the event of liability due to defects in a delivered item where liability for personal injury or material damage to privately used objects is involved in compliance with the Product Liability Act. Further claims are excluded. In cases where SCHAKO components are integrated in plants belonging to the Buyer, the plant manufacturer is responsible for ensuring their compatibility with the plant. Compatibility problems do not fall within SCHAKO’s sphere of influence. Compliance with existing minimum wage legislation, as amended from time to time, is a matter of course.
X. Withdrawal from the Agreement
The Buyer may withdraw from the Agreement either in the event of a failed attempt to repair and replace faulty products or if performance of the overall contract becomes impossible prior to the passing of risk. The same applies when, in the event of purchase orders for identical objects, execution of part of the delivery is not possible and the Buyer is able to provide evidence of justified interest in refusal; Should the Buyer be unable to provide such evidence, payment may only be reduced commensurately. In the event of a delay in performance for which we are responsible and should the Buyer grant a reasonable period of grace with an express declaration of intent to refuse acceptance of performance after expiry of the given period, then the Buyer shall be entitled to withdraw from the Agreement in the event of our failure to adhere to the agreed period. Compensation for damages or consequential damages is excluded. Should the inability to deliver occur during a delay in acceptance or for reasons for which the Buyer is responsible, the Buyer shall still be obliged to make the relevant payment.
XI. Software utilisation, custom-made products, data protection
Software made available by us is subject to our copyright. Customers are only granted a non-exclusive right to utilise the software for its intended application in accordance with the specified purpose of the Agreement. It is prohibited to use the software on more than one system. Translation, duplication, revision or conversion from the object code to the source code without prior written consent is a punishable offence. All rights are reserved to the supplier. The granting of sublicenses is prohibited. For ordered customised products we assure correct execution according to plans and drawings, for correct manufacturing and the use of conventional materials, as well as the functional safety in compliance with the technical documents. Otherwise the above rulings apply also to custom-made products. SCHAKO saves the data used in commercial transactions exclusively for commercial purposes in its EDP and observes the currently valid data protection regulations.
XII. Place of fulfillment, place of jurisdiction, applicable law
The place of fulfillment is the location of the SCHAKO headquarters (Messkirch); the place of jurisdiction for lawsuits up to a value of 5,000.00 €, the Local Court of Sigmaringen and above this value the Regional Court of Hechingen. This also applies to claims arising from warranty or implied warranty. For all disputes arising from the contractual relationship, if the Buyer is a businessman, a commercial enterprise, a legal entity under public law or a special fund under public law, any lawsuits must be filed with the Regional Court of Hechingen. However, we are entitled to file a claim also at the court with jurisdiction over the Customer. German law exclusively shall apply to the exclusion of the UN Convention on the International Sale of Goods, even if the Buyer is domiciled abroad.
XIII. Other, severance clause
The transfer of rights and obligations of the Buyer arising from Agreements concluded with us is only valid with our written consent. Should one of the above provisions be invalid, this does not affect the effectiveness of the other provisions and thus the legal transaction. In such cases, the parties agree to a provision which understanding partners would make in the interests of the parties concerned.