General Terms and Conditions of Schmitt Ladenbau GmbH (As of 1 April 2008)

§ 1 General Provisions

1.    Offers, conclusion of contracts, and processing deliveries and services including consulting services shall be rendered exclusively on the basis of these General Terms and Conditions. Deviating or contradictory terms by the Customer shall not be accepted.  These provisions shall also apply to all future contracts with the Customer without requiring a new agreement.

2.    These provisions shall apply only to persons who, when concluding the contract, are exercising their commercial or self-employed professional activity (“entrepreneur”) and to legal entities and special funds under public law. They shall not apply to natural persons concluding the contract for a purpose that is not related to the natural person’s commercial nor self-employed professional activity (“consumer”).

3.    All provisions agreed to between us and the Customer for the purpose of performing this contract have been laid down in this contract.

§ 2 Conclusion of Contract, Samples

1.    Offers are subject to change, i.e. are to be understood as submitted upon enquiry, unless otherwise stated in the offer.  The Customer’s order is a binding offer, which we can choose to accept by sending an order acknowledgement within three weeks or by mailing or delivering the ordered goods to the Customer within that period. In the latter case, the delivery note or the commercial invoice shall represent the acknowledgement.

2.    Consultation and planning are non-binding as long as an order has not been placed. Sketch plans etc. shall remain our intellectual property, even after the order has been performed. Illustrations, descriptions, price lists, samples, concepts, and drafts may neither be copied nor disclosed to third parties in any form whatsoever. Nor may the Customer use them to manufacture products on their own or have them manufactured by third parties. Should these obligations not be adhered to, we shall be entitled to claim compensation of 15% of the net order value. This shall not affect any possible further claims for damages. The Customer shall retain the right to prove that our cost or our damage is lower.

3.    Should our consulting and/or planning not result in a contract for performing the services, all and any planning documents produced by us shall be returned to us without delay.

4.    Obvious errors, mistakes in writing, printing, and calculation are non-binding for us. Unless otherwise agreed, the documents belonging to the offer, such as illustrations, drafts, calculations, weights and measurements are considered approximations. Such specifications, in particular regarding services and usability of supplied products as well as DIN standards shall only be considered as agreed by contract if and when explicitly agreed in writing. It is with special agreement only that we can assume liability for technical specifications by third-party suppliers. Unless otherwise agreed, samples and specimens shall be regarded as approximate indications as for quality, measurements, and colours.

§ 3 Prices and Payment

1.    Our prices are net plus VAT. They are given in euros, ex works plus packaging, shipping, freight, and installation, unless otherwise agreed in writing. Packaging will be charged at cost price and not taken back. Additional cost for express shipping will be charged extra.

2.    Upon conclusion of contract, we reserve the right to adjust our prices accordingly to inevitable changes in price-determining factors such as collective agreements, material cost changes, and taxes.

3.    Unless otherwise agreed by the contractual partners, payment is to be made as follows:

30% with conclusion of contract
30% five work days before the agreed start of installation at the latest
30% upon completion of installation and
10% within 10 days after date of invoice

Invoices shall be issued as per the date of delivery or of placing the goods at disposal

4.    Offsetting or retention of payments is only admissible if the Customer’s claims are acknowledged, uncontested, ready for decision, or legally binding.

5.    Notwithstanding any provisions of the Customer’s to the contrary, payments will be set off against the oldest debt of the Customer’s. If costs and/or interest have already been incurred, the payment will be set off against first the cost, then the interest, and then against the principal.

6.    If, after conclusion of the contract, it becomes apparent that our claim for payment is at risk due to insufficient financial capacity of the Customer, we are entitled to refuse performing our services and preparatory work. The right to refuse performance will become ineffective if the payment is made or collateral is provided. We are entitled to set a reasonable period for effecting payment / providing collateral. After unsuccessful elapse of said period, we reserve the right to terminate the contract.

§ 4 Terms of Delivery, Deliveries, Delay

1.    Agreed terms of delivery commence upon sending of order acknowledgement, but only after clarification of details required from the Customer regarding the desired design and only after receipt of the due advance payment from the Customer.

2.    The performance and delivery term respectively shall be extended reasonably – also during a delay - in the event of force majeure and all unforeseeable obstacles for which we are not responsible arising after conclusion of contract, if such obstacles demonstrably have considerable influence on performing the service owed. This also applies if these circumstances occur at our upstream suppliers, forwarding agents, and sub-contractors. The Customers will be informed about the start and end of such obstacles as soon as possible. Should such an obstacle last longer than three months or should it be obvious that it will last longer than three months, both the Customer and we ourselves can terminate the contract. In the event of a termination due to such obstacles, damage claims of the Customer shall be excluded. This, however, only applies if we have informed the Customer of the importance of the unforeseeable obstacle immediately upon gaining knowledge of it.

3.    We reserve the right to carry out partial deliveries.

4.    The contractual partner is responsible for ensuring smooth delivery to the premises and installation.

In the event that the Customer cannot fulfill these conditions due to delays or interruptions on site because of companies working on site, of the Customer’s upstream suppliers, of the Customer not having provided required documents, authorizations, and releases, we have to be notified about the fact at least 10 days in advance. Should, at that point of time, deliveries have already been effected and are returned to us due to circumstances the Customer is liable for, we are entitled to charge the extra costs separately. The agreed term of delivery shall be extended appropriately. This also applies in case of modifications and new orders by the Customer after conclusion of contract.

5.    If the Customer is in arrears with accepting delivery of items delivered or with paying the purchase price, we are entitled to terminate the contract and/or to claim damages in place of service performance after unsuccessful expiry of a reasonable period of grace set by us. In the event we claim damages in place of service performance, we are entitled to claiming 40% of the net order value as a flat-rate compensation. Any further damage claims remain unaffected thereof. The Customer shall retain the right to prove that our cost or our damage is lower. Furthermore, we are entitled to charge costs incurred in the event of accepting delay, in particular warehousing cost, to the Customer. If the items are stored in our own warehouse, the locally customary warehousing cost shall be charged.

6.    If we default in delivery due to ordinary negligence, our liability for damages due to default in delivery is limited to 0.75% of the net order value each for every completed week of delivery default, the maximum liability will not exceed 5% of the relevant net order value. In the event that the Customer will claim damages instead of delivery, the relevant claim shall be limited to 20% of the net order value. The liability limitations as per clauses 1 and 2 shall not apply in the event of default in delivery due to gross negligence or intent, in the event of culpable harm to body, life, and health, nor in connection with fixed date agreement, i.e. a transaction where meeting a fixed date of delivery is a cardinal obligation of the contract.

§ 5 Passing of Risk

1.    The risk of loss or deterioration of the merchandise shall pass to the Customer as soon as the consignment is handed over to the forwarding carrier; this shall also apply if and when carriage and installation have been agreed to be free of charge. In the event that the transport is done by our staff, the risk shall pass to the Customer upon delivery at the Customer’s.

2.    The Customer is responsible for taking out insurance against insurable risks to the consignment as of the moment the risk passes.

§ 6 Retention of Title

1.    We reserve the title to the goods until all due payments – also future ones - from the current business relationship with the Customer have been received, including all accessory claims such as financing costs and interests. If an open account agreement exists between us and the Customer, retains title in the goods until such time as all claims from that current account have been balanced. Should a check-bill procedure have been agreed between us and the costumer, retention of title does not become invalid upon crediting the check received to our account, but is extended to such time as the bill of exchange issued by us has been honoured by the Customer.

2.    The Customer shall be obliged to treat the goods subject to retention of title with proper care, in particular to insure them adequately to cover the replacement value against damage by fire, water, and theft, and to notify us immediately in the event of seizure, confiscation, damage, and/or loss. We are entitled to terminate the contract if this obligation is breached. The Customer shall bear all additional costs, in particular those arising from a third party proceeding to repeal the seizure and, if necessary, from replacement of the items delivered if they cannot be reclaimed by the third party.

3.    In the event of the Customer being in arrears for a substantial part of his payment obligations, we are entitled to a provisional recovery of the goods subject to retention of title. Recovering the goods does not represent a cancellation of the contract, unless expressly declared. The costs accrueing from recovering the goods, in particular for transport and storage, shall be charged to the Customer, provided he was given reasonable notice of the impending recovery. We reserve the right to commercialize the goods recovered and to satisfy payments due from their sale, provided we have given reasonable notice of such sale.

4.    In the event of the Customer having combined the goods subject to retention of title with other goods, we are entitled to co-ownership of the newly created goods proportionally to the invoice value plus the processing value. Should our property be lost due to combination, blending, or processing, the Customer shall transfer his property rights in the newly created goods to us in the very moment of combining, blending, or processing proportionally to the invoice value of the goods subject to title and shall keep them at our disposal free of charge. The property rights thereof are considered goods subject to retention of title in accordance with no. 1.

5.    The Customer shall transfer with immediate effect all claims (including a recognized balance from an open account agreement) to us regarding purchasing price, contractual fees, and others resulting from resale, processing, or any other legal grounds (e.g. insurance claim, illegal action, loss of property due to combination of the item delivered with real estate) in connection with the goods subject to retention of title in the proportion of the invoice value of the goods subject to retention. We shall accept the transfer of claims. The transfer of claims in accordance with clause 1 serves to secure all claims – including future ones – from the business relationship with our customer.

6.    Until further notice, the Customer is entitled to collect claims from resale for us in his own name. This direct debit authorization can only be withdrawn if the Customer fails to fulfill his payment obligations properly. Upon our request, the Customer, in such a case, shall have to submit the documents required to notify the debtor of the claims transfer.

7.    In the event that the realizable value of the securities existing in accordance with the aforementioned provisions exceed our claims against the Customer by more than 10% for more than a temporary time period, wes hall release securities of our own choice upon the Customer’s request. Should we be charged with value added tax for selling the collateral good, the aforementioned coverage limit of 110% shall be increased by the relevant amount for value added tax - if the delivery of goods from the Customer to us is subject to value added tax.

8.    Upon cessation of payment, application or initiation of insolvency proceedings, or extrajudicial proceedings, the Customer’s right to re-sell and to use the goods subject to retention of sale as well as the direct debit authorization shall expire. The statutory rights of a liquidator – even if only temporary – shall remain unaffected thereof.

9.    In the event of a delivery abroad, the Customer is responsible for taking all steps required for meeting the retention of title provisions in this contract or in accordance with security interest laws applicable in the relevant country ( in particular to undertake a required registration or to close an additional collateral agreement with us).

§ 7    Customer’s Duty to Examine Goods, Notice of Defects, Legal Rights in Case of Material Defects

1.    The Customer is responsible for examining the drafts sent for release. The Customer approves the drafts with his release declaration, so that no rights regarding deficiencies arise insofar as the item delivered corresponds to the drafts. The same applies to any further release declarations by the Customer in the subsequent manufacturing process.

2.    In the event of a purchase or a contract for supply of goods to be manufactured or created, which represents a commercial transaction each for both parties, the Customer shall file a written complaint about deficiencies of any kind, except for hidden deficiencies, within seven work days upon delivery; otherwise the delivery item is deemed accepted. Complaints about any hidden deficiencies shall be made in writing immediately when they are discovered; otherwise the delivery item is deemed accepted regarding this deficiency as well. Negotiations about complaints mean in no case we waive our right to consider a deficiency complaint late, insufficient, or unfounded.

3.    The contractual partner is responsible for enabling us to examine the reported deficiency in situ. In case of damages caused in transit or through breakage, the merchandise shall be left in the condition, in which it was when the defect was found.

4.    In the event the item delivered is defective, we may, at our option, remedy the defect as supplementary performance (subsequent improvement) or supply a non-defective item (replacement delivery). Should we not be prepared or able to remedy the defect or deliver a non-defective item, in particular in the event of delays beyond reasonable periods of time for reasons we are responsible for, or if the subsequent improvement/replacement delivery should fail otherwise, the Customer is entitled, at his option, to withdraw from the contract or reduce the amount owed if further attempts at subsequent improvement are unacceptable. The Customer’s withdrawal from the contract in the event of insignificant deficiency requires our approval.
5.    The limitation period for material defects shall be a year. In the event of culpable harm to body, life, and health, and in cases of intention and gross negligence, the limitation period for material defects shall be two years. In cases where in §§ 438 clause 1 no. 2, 634 a clause 1 no. 2 und 479 the German Civil Code, BGB, stipulates longer limitation periods, they shall apply unless the contractual parties have agreed on the German Construction Contract Procedures, VOB, part B: In that case, the stipulations of VOB part B shall apply.

6.    Material defect rights can only result if an item supplied is defective at such time as the risk passes. Material defect rights to not arise from unsuitable or improper use; poor mounting or commissioning by the Customer or by third parties commissioned by him; from normal wear; faulty or negligent handling; faulty construction work; unsuitable construction base; chemical, electro-technical, or electrical influences, if they are not due to fault on our part, e.g. in cases of force majeure, or similar.

7.    We shall be liable for damages due to deficiency of the supplied item only in accordance with the limitations provided in §

§ 8 Limitation of Liability

1.    We shall be liable according to the regulations of the German Produkthaftungsgesetz (Product Liability Act) as well as in cases of incapacity and impossibility we are responsible for. Furthermore, we shall be liable for damages in accordance with the legal regulations in cases of intent, gross negligence, a warranty given as well as in the event of culpable harm to body, life, and health. Moreover, we are liable also for ordinary negligence as far as we violate such a contractual obligation whose performance is necessary to execute the contract properly and whose performance the Customer may regularly rely upon (so-called cardinal obligation); in this event our liability is limited to the foreseeable, typical damage. The limitation of liability in the event of delay in delivery remains unaffected thereof. In all other cases of liability, claims for damages based on the breach of obligations arising from the contractual relationship or from illegal acts shall be excluded, so that we are not liable insofar for lost profits or other financial losses of the Customer.

2.    Insofar as liability is exluded or limited due to the above-mentioned provisions, this also applies to the personal liability of our employees, workers, personnel, legal representatives, and other vicarious agents.

§ 9 Court of Jurisdiction, Applicable Law

1.    The venue of jurisdiction shall be Würzburg if the Customer is a merchant in the sense of the German Handelsgesetzbuch (code of commercial law), legal person under public law or a public special fund. The same venue of jurisdiction applies if the Customer does not have any general venue of jurisdiction in Germany, if after conclusion of contract relocates his domicile or customary place of residence abroad and if his domicile or customary place of residence is not known at the time when the action is filed. We reserve the right, however, to bring action against the Customer at his own general or special legal venue.

2.    The law of the Federal Republic of Germany is applicable to these General Terms and Conditions and to all legal relations between us and the Customer, excluding the UN Convention on Contracts for the International
Sale of Goods (CISG)

Supplement to the General Terms and Conditions:

Should one or several provisions of these general terms and conditions fully or partly be or become invalid or prove to be unenforceable subsequently, this shall not affect the validity of the other provisions. In this case, the statutory regulations shall replace the invalid or unenforceable provision. The same shall apply in the case of a regulatory gap in the present general terms and conditions.

Severability Clause

In the event of legal disputes regarding provisions hereof, the German text maintains authority and German law is applicable.

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