General terms and conditions
General terms and conditions of business relating to goods and services of SCHMIDT + HAENSCH GmbH & Co., Berlin
The following terms and conditions shall apply to all offers and contracts of SCHMIDT + HAENSCH GmbH & Co. relating to goods and services.
Any different, contrary or additional general terms and conditions of contract of the customer are hereby expressly excluded. Neither shall those become an integral part of any contract if they are not expressly excluded in an individual instance.
Conclusion of contract/offer
Oral agreements shall only become valid when SCHMIDT + HAENSCH GmbH & Co. shall confirm the same in writing. Offers of SCHMIDT + HAENSCH GmbH & Co. that do not include any acceptance deadline may be revoked by SCHMIDT + HAENSCH GmbH & Co. unless SCHMIDT + HAENSCH GmbH & Co. receives written confirmation of acceptance by the customer within three weeks with effect from the offer date. The documents belonging to the offer/contract, such as illustrations, drawings and specifications of dimensions shall only give approximate indications insofar as they are not expressly designated as binding. Drawings and illustrations shall remain in the ownership of SCHMIDT + HAENSCH GmbH & Co. SCHMIDT + HAENSCH GmbH & Co. reserves the right, during the course of further developments, to effect changes to the products insofar as the customer can reasonably be expected to tolerate the same.
Price, dispatch, packaging, scope of delivery
All prices shall be EXW (Incoterms 2010) excluding statutory domestic value added tax/comparable foreign tax and packaging costs. Customers within the EU shall be obligated to indicate their VAT identification number. SCHMIDT + HAENSCH GmbH & Co. shall select the type of packaging for the items to be delivered and shall charge packaging to the customer. If the customer requests delivery, this shall be charged to the customer and be at the risk of the same. The customer shall take care of disposal of the packaging, insofar as SCHMIDT + HAENSCH GmbH & Co. does not request return thereof. Equipment and auxiliary items delivered shall be assembled by the customer.
Delivery times, force majeure
Adherence to delivery times shall require performance of contractual duties by the customer.
Delivery times shall be reasonably extended in the context of events relating to industrial disputes, in particular strikes and lockouts, or if unforeseen obstacles shall arise which lie outside the control of SCHMIDT + HAENSCH GmbH & Co., such as interruption of operations, operational breakdown or malfunction or delays in the delivery of essential materials, insofar as such obstacles are proven to exert significant influence on manufacture or delivery of the item ordered. This shall also apply if such circumstances arise at subcontractors of SCHMIDT + HAENSCH GmbH & Co. Neither shall SCHMIDT + HAENSCH GmbH & Co. be liable for the circumstances described above if they arise during an already existing delay. SCHMIDT + HAENSCH GmbH & Co. shall in significant instances notify the beginning and end of such obstacles to the customer as soon as possible. Partial deliveries shall be permissible within the delivery times indicated by SCHMIDT + HAENSCH GmbH & Co., insofar as this does not give rise to any disadvantage in terms of utility for the customer. If, by way of exception, SCHMIDT + HAENSCH GmbH & Co. has a duty to assemble items delivered, the deadlines pledged by SCHMIDT + HAENSCH GmbH & Co. need only be met if the items to be assembled are made available by the customer in a timely manner.
Payment, due date, payment of deposits, default
Default payment condition is payment in advance. Any deviating payment conditions have to be agreed separately by SCHMIDT + HAENSCH GmbH & Co. in written form.
The customer must maintain secrecy with respect to confidential information of SCHMIDT + HAENSCH GmbH & Co. and its subsidiaries and affiliated companies.
If the customer withdraws without justification from a sales order issued, SCHMIDT + HAENSCH GmbH & Co. may demand 10% of the sale price with respect to costs of processing the order in question and loss of profits, notwithstanding the possibility of claiming a higher actual loss. The customer reserves the right to provide evidence of a smaller loss. This shall not entail any waiver by SCHMIDT + HAENSCH GmbH & Co. of claims provided for by law.
SCHMIDT + HAENSCH GmbH & Co. shall in principle be liable for defects for a period of one year. In the event of a defect, SCHMIDT + HAENSCH GmbH & Co. shall at its own discretion be entitled by way of subsequent performance to effect a replacement delivery or to rectify the defect. In the event of a defect in title, SCHMIDT + HAENSCH GmbH & Co. shall be entitled to remedy such defect by modifying the delivered item in a manner reasonably acceptable for the customer. The customer shall only be entitled to claim damages in lieu of performance in the event of intentional or grossly negligent breach of duty on the part of SCHMIDT + HAENSCH GmbH & Co. If in the event of a defect in title modification is not feasible on economically reasonable terms or within a reasonable period, both the customer and SCHMIDT + HAENSCH GmbH & Co. shall be entitled to withdraw from the contract. Where SCHMIDT + HAENSCH GmbH & Co. has provided a warranty as to durability, the customer shall be required to furnish evidence that the material defect existed at the time of transfer of risk, unless the customer cannot reasonably be expected to do so in individual cases. In all other respects, the provisions contained below under ‘Liability’ shall also apply to the warranty. SCHMIDT + HAENSCH GmbH & Co. shall be held liable if a defect has been fraudulently concealed or if a guarantee of specific quality has been given by SCHMIDT + HAENSCH GmbH & Co.
In the event of intent or gross negligence on the part of legal representatives or employees at executive level, and in the event of culpable breach of material contractual duties by the same or other employees, SCHMIDT + HAENSCH GmbH & Co. shall be liable in accordance with the legal provisions. With regard to any breach of minor contractual duties by other employees, SCHMIDT + HAENSCH GmbH & Co. shall not be liable. SCHMIDT + HAENSCH GmbH & Co. shall not be liable for losses not typically associated with this type of contract and that are thus scarcely foreseeable. With regard to claims under the German Product Liability Law, such Law shall apply without restriction. Claims for damages in tort shall only apply if they are caused intentionally or by gross negligence. This shall also apply with regard to actions of vicarious agents of SCHMIDT + HAENSCH GmbH & Co. SCHMIDT + HAENSCH GmbH & Co. shall be liable in accordance with the statutory provisions in the event of culpable physical injury and hazards to life and health. If determination of fault is required for any claim of the customer, the burden of evidence shall rest with the customer unless otherwise prescribed by law and the customer cannot reasonably be expected to bear the burden of evidence.
Retention of title
SCHMIDT + HAENSCH GmbH & Co. shall retain title to all items delivered until receipt of payment in full and shall be entitled to withdraw from the contract if the customer is in arrears with such payment. Retention of title shall also extend to claims that SCHMIDT + HAENSCH GmbH & Co. acquires retrospectively against the customer in connection with items delivered hereunder.
The customer shall be entitled to resell the items delivered in the course of ordinary business dealings; the customer hereby assigns to SCHMIDT + HAENSCH GmbH & Co. all claims arising from resale of the items delivered to third parties in the sum of the purchase price agreed between SCHMIDT + HAENSCH GmbH & Co. and the customer (including statutory domestic value added tax/comparable foreign tax), irrespective of whether resale takes place before or after processing of the goods with respect to which title is retained. The customer shall be authorized to collect claims against the third party, provided the customer complies with his or her payment obligations in relation to SCHMIDT + HAENSCH GmbH & Co. and insolvency proceedings have not been instituted with respect to the customer’s assets. SCHMIDT + HAENSCH GmbH & Co. right to collect the claim itself shall remain unaffected thereby. However, SCHMIDT + HAENSCH GmbH & Co. undertakes not to collect the claims provided that the customer properly complies with his or her payment obligations, is not in arrears with payment, and insolvency proceedings have not been instituted with respect to his or her assets. However, if this is the case, SCHMIDT + HAENSCH GmbH & Co. may require that the customer disclose the claim assigned and the debtor in question, make all indications required for collection, surrender the relevant documents, and notify debtors (third parties) of such assignment of claims. Processing and/or machining shall take place on behalf of SCHMIDT + HAENSCH GmbH & Co. In the case of linkage, blending or combining with other goods not belonging to SCHMIDT + HAENSCH GmbH & Co., the latter shall acquire joint title to the new item in proportion to the value of the item supplied by SCHMIDT + HAENSCH GmbH & Co. compared with the other goods at the time of linkage, blending or combining. SCHMIDT + HAENSCH GmbH & Co. undertakes to release the collateral that it holds upon the customer’s request insofar as the value thereof exceeds the claim to be secured by more than 20 %. The customer may not pledge or assign as security the items delivered. In the case of access by third parties, in particular in the case of attachment, the customer must provide written notification to SCHMIDT + HAENSCH GmbH & Co. immediately, as well as refer the third party immediately to retention of title by SCHMIDT + HAENSCH GmbH & Co. The customer shall bear all costs incurred in removing access or recovering the goods or the items delivered. The customer shall be obligated to maintain the goods/items delivered in a proper condition for the period of retention of title and, for as long as the customer has not yet resold the same in the ordinary course of business, and to allow immediate performance of all maintenance work and requisite servicing scheduled by SCHMIDT + HAENSCH GmbH & Co. or by an enterprise recognized by SCHMIDT + HAENSCH GmbH & Co. with regard to servicing of the goods/items delivered hereunder. In addition, as long as the customer has not yet resold the goods/items delivered in the ordinary course of business and has transferred possession thereof, the customer shall label the same as being in the ownership of SCHMIDT + HAENSCH GmbH & Co.
Duty of collaboration with regard to advice and directions for use and processing
SCHMIDT + HAENSCH GmbH & Co. requests an express indication if the customer bases its own conduct on advice given and directions for use, the effects of which are not obviously clear to SCHMIDT + HAENSCH GmbH & Co. SCHMIDT + HAENSCH GmbH & Co. expressly states that, in individual instances, it will provide advice against remuneration, whereby the details must be agreed individually. Without remuneration, directions by SCHMIDT + HAENSCH GmbH & Co. shall not be binding in nature.
Laws on foreign trade
SCHMIDT + HAENSCH GmbH & Co. shall be responsible for adherence to German regulations insofar as products manufactured in Germany are exported. The observance and implementation of the relevant rules under the laws on foreign trade (e.g. import licences, foreign-currency transfer authority, etc.) and other laws applying outside the Federal Republic of Germany shall be the exclusive responsibility of the customer.
The customer shall be responsible for ensuring that shapes, forms, colors, etc., based on its instructions do not interfere with the property rights of third parties. The customer shall indemnify SCHMIDT + HAENSCH GmbH & Co. against all claims of third parties for violation of the said commercial property rights including all court and outof- court costs and, upon request, provide support in any litigation.
Limitation of claims
All claims of the customer, irrespective of their legal basis, shall be subject to a limitation period of one year. The statutory limitation periods shall apply with respect to intentional behaviour or fraudulent conduct and claims under the German Product Liability Law.
If software is included in a delivery, the customer shall be granted a non-exclusive right to use the software and its associated documentation. Such software shall be provided for use with the specific delivered item and use on more than one system shall not be permitted. The customer undertakes to refrain from removing manufacturer’s markings, in particular copyright notices, or to change these without the prior express consent of SCHMIDT + HAENSCH GmbH & Co. All other rights to the software and the documentation including copies thereof shall remain with SCHMIDT + HAENSCH GmbH & Co. or the software supplier. The issue of sublicenses is not permitted.
Place of performance, place of jurisdiction and applicable law
The business relations shall be exclusively subject to the laws of the Federal Republic of Germany, with the exception that the rules of conflict of laws shall be excluded. The UN Sales Convention (CISG) shall not apply. The place of performance and the place of jurisdiction with regard to all goods supplied and services provided shall be Berlin, Germany. Further, SCHMIDT + HAENSCH GmbH & Co. shall be entitled at its discretion to assert its own claims at the customer’s place of jurisdiction. After a lawsuit has been filed, the customer shall be limited on the basis of his own rights and claims to bring a counterclaim before the court before which the original action has been brought or to offset his own claim against the claim lodged in said action before the court.
In the event that any term hereof should be or become invalid, this shall not affect the validity of the remaining terms.
These General Terms and Conditions of Business relating to Goods and Services of SCHMIDT + HAENSCH GmbH & Co. are issued in German and English.
In cases of doubt, the German wording shall prevail.