of SCHULTE LAGERTECHNIK Gebr. Schulte GmbH & Co. KG
1. General / scope
These General Terms and Conditions of SCHULTE LAGERTECHNIK Gebr. Schulte GmbH & Co. KG ("GTC") shall apply to contracts with companies, legal entities under public law and special funds under public law ("Purchaser" or "Customer") for deliveries and other services (including contracts for work and services), in particular planning and delivery of shelving and shelving systems and their assembly. They shall apply to similar future contracts with the Purchaser/Customer even if they are not separately agreed again.
Terms and conditions of purchase or other terms and conditions of the Purchaser/Customer shall not apply, even if reference is made to them in other documents (e.g. delivery notes, invoices, (acceptance) protocols) or other declarations of the parties.
In case of doubt, the Incoterms in their latest version shall be decisive for the interpretation of trade terms.
"Purchaser" within the meaning of these GTC shall also be the "Customer" in the case of contracts for work and services.
2. Offers; Conclusion of Contract and Contract and Contractual Services; Form
Our offers are subject to change. Verbal agreements, promises, assurances and guarantees made by our employees in connection with the conclusion of the contract shall only become binding upon our written confirmation.
Subject matter of the contract with the Purchaser may include the following services ("Contractual Services"):
- Delivery of a shelving system ordered by the Purchaser
- Delivery and assembly of a shelving system ordered by the Purchaser
- Planning of a shelving system and delivery of this planned shelving system
- Planning of a shelving system as well as delivery and assembly of this planned shelving system
The contract concluded between the Purchaser and us shall be decisive for the content of the Contractual Services.
The Purchaser's order for the Contractual Services shall be deemed a binding offer to conclude the contract. Acceptance shall be effected by confirmation of the order or by delivery of the shelving system.
If the Purchaser orders the planning of a shelving system, we will prepare the respective agreed documents ("Planning Documents") and hand them over to the Purchaser. We are entitled to implement the planning based on the provided Planning Documents, unless the Purchaser notifies us in text form within two weeks after handover of the Planning Documents that he rejects the Planning Documents.
If assembly is part of the Contractual Services, we shall assemble the ordered or planned shelving system at the agreed assembly location in accordance with our assembly conditions and guidelines ("Assembly Conditions"). If the place of delivery differs from the place of assembly, the Purchaser shall be responsible for transporting the shelving system from the place of delivery to the place of assembly. In the event of contradictions between these GTC and the Assembly Conditions, the Assembly Conditions shall take precedence for the provision of the assembly services.
The conclusion of the contract, any supplements and amendments to the terms of the contract (including the agreed Contractual Services, these GTC and the Assembly Conditions) as well as its termination must be made in writing in order to be effective, unless a stricter form is prescribed by law. The written form is also fulfilled by an electronic signature (DocuSign or similar). A declaration by e-mail alone is not sufficient.
Legally relevant declarations and notifications by the Purchaser with regard to the contract or the Contractual Services (e.g. setting of deadlines, notification of defects, rescission or reduction) must be made in writing or in text form.
Unless otherwise agreed, the prices and conditions of our price list valid at the time of conclusion of the contract shall apply. The basis for calculation are the determined weights and sizes. External packaging shall be charged additionally and at cost price.
Our prices are ex works, excluding packaging and VAT. The prices do not include assembly, unless assembly is expressly agreed as part of the Contractual Services. Duties, customs, taxes and other charges shall be borne by the Purchaser. Our prices are calculated based on the assumption of normal shipping and transport conditions. Additional costs incurred due to impediments or hindrances to shipping or transport conditions, as well as failed transport tours, shall be borne by the Purchaser if we are not responsible for them.
If duties or other external costs included in the agreed price change later than 4 weeks after the conclusion of the contract or if they are newly incurred, we shall be entitled to change the price accordingly.
If the production/procurement costs increase by more than 10% between conclusion of the contract and performance, we shall be entitled to increase our price accordingly. We shall then charge the price valid on the day of performance. The same applies to orders without a price agreement.
4. Payment and settlement
Unless otherwise agreed or stated in our invoices, payment - without deductions, in particular also without discount deduction (Skonto) - shall be made in such a way that we can dispose of the amount on the due date. The costs of payment transactions shall be borne by the Purchaser. The Purchaser shall only be entitled to a right of retention and a right of set-off insofar as his counterclaims are undisputed or have been established in a legally binding way.
The Purchaser shall be in default at the latest 14 days after the due date and receipt of the invoice/payment schedule.
If it becomes apparent after the conclusion of the contract that our claim for payment is jeopardized by the Purchaser's inability to pay, we shall be entitled to the rights under Section 321 of the German Civil Code (Bürgerliches Gesetzbuch, “BGB”) (defense of uncertainty). We shall then also be entitled to declare due all claims not subject to the statute of limitation from the current business relationship with the Purchaser. Furthermore, the defense of uncertainty extends to all other outstanding deliveries and services from the business relationship with the Purchaser. We can set the Purchaser a reasonable period of time in which he has to pay the purchase price or provide security, at his discretion, in return for the performance. After unsuccessful expiry of the deadline, we may rescind from the contract and claim damages
Any agreed discount (Skonto) always relates only to the invoice value excluding freight and presupposes the full settlement of all due liabilities of the Purchaser at the time of the discount (Skonto).
5. Execution of the delivery, deadlines and dates, force majeure
Our delivery obligation is subject to correct, timely and complete self-delivery, unless we have not selected the suppliers with the care of a prudent businessman and/or we have not concluded a congruent covering transaction for the performance of the service and/or the incorrect, late or incomplete delivery is caused by our fault.
Unless expressly agreed otherwise, information on delivery times is non-binding and does not constitute any fixed dates. In order to provide the Contractual Services, we are dependent on the timely provision of services by the Purchaser in accordance with the contract. Any agreed dates for the performance of Contractual Services shall therefore only apply subject to the timely clarification of all details of the Contractual Services and the timely fulfilment of all obligations of the Purchaser, such as the provision of all official certificates, the provision of letters of credit or guarantees or the provision of agreed advance payments and securities (see also No. 6 GTC for further obligations of the Purchaser).
Delivery periods shall commence on the date of our order confirmation. The date of dispatch ex works or ex warehouse shall be decisive for compliance with delivery periods and dates. They shall be deemed to have been met upon notification of readiness for dispatch, if the goods cannot be dispatched on time through no fault of our own.
If delivery/collection or assembly is delayed for reasons for which the Purchaser is responsible, the Purchaser shall bear the costs of storage and the risk of accidental loss.
Events of force majeure shall entitle us to postpone the performance of the Contractual Services by the duration of the hindrance and plus a reasonable start-up period. This shall also apply if such events occur during an existing delay. Events of force majeure shall be deemed to include monetary, trade policy and other sovereign measures, strikes, lockouts, operational disruptions or shortages of raw materials or energy for which we are not responsible, fire, severe weather, disruptions due to an epidemic or pandemic, cyberattacks, obstruction of traffic routes, delays in import/customs clearance and all other circumstances which – without being our fault – make the performance of the Contractual Services significantly more difficult or impossible. If, as a result of an event of force majeure, the performance of the contract becomes unreasonable for one of the parties, it may demand the adjustment or cancellation of the contract.
6. Obligations of the Purchaser
The Purchaser shall provide us completely and correctly with all information required for the planning. To the extent our planning is based on specifications of the Purchaser, the Purchaser shall be solely responsible for these specifications. The Purchaser shall promptly review and approve the Planning Documents provided by us or inform us of any reasons for rejection.
The Purchaser shall promptly and properly unload and move the goods to their designated place at his own expense and risk. If we assist, this shall be without legal obligation and liability for slight negligence shall be excluded. Necessary aids are to be provided to us by the Purchaser in good time and in sufficient quantity and duration free of charge.
The Purchaser shall secure and monitor the place of delivery as well as the place of assembly by suitable means.
The Purchaser agrees to grant representatives of the Materialpruefungsamt Nordrhein-Westfalen (Materials Testing Office North-Rhine Westphalia; MPA NW) access to the place of delivery as well as the place of assembly at any time during normal business hours and to permit an inspection of the quality-assured storage shelving and shelving systems. The costs of any inspection are free of charge for the Purchaser within the scope of the quality assurance warranty.
The Purchaser shall also be obliged to allow the necessary access to his premises for at least 10 hours per working day for the purpose of carrying out assembly work and to sufficiently light, ventilate and heat the premises, as well as to provide the necessary energy, in particular electricity, gas and water, free of charge.
The Purchaser shall cooperate and shall provide the support services described in the Assembly Conditions and ensure that the requirements for the place of assembly described in the Assembly Conditions are met. If this is not the case or changes after conclusion of the contract, the Purchaser must inform us immediately.
The Purchaser is obliged to provide the necessary aids, for example loading cranes, forklifts, lifting platforms and the like for unloading and moving goods to their designated place as well as for assembly free of charge and to a sufficient extent in terms of time and material.
The Purchaser shall ensure at his own expense that the delivered items in his possession are insured against loss and damage until the transfer of risk and ownership is complete.
In all other respects, the Purchaser shall provide the necessary cooperation and support services in due time and to the extent required for the timely performance of the Contractual Services.
If the Purchaser is in default with the fulfilment of his duties to cooperate and provide support services, our obligation to perform shall be suspended for the duration of the default to the extent the Contractual Services cannot be performed without the cooperation and/or support service of the Purchaser or can only be performed at disproportionate additional expense. To the extent missing, incorrect, incomplete or subsequently corrected cooperation support and support services of the Purchaser lead to additional expenditure for us, we may invoice this additional expenditure based on agreed daily rates, otherwise based on our general price list.
7. Retention of title
All goods delivered shall remain our property ("Reserved Goods") until all claims, in particular also the respective balance claims, to which we are entitled within the scope of the business relations have been settled ("Balance Reservation"). This shall also apply to claims arising in the future and conditional claims, e.g. from acceptors' bills of exchange, and also if payments are made on specifically designated claims. This Balance Reservation shall finally expire upon settlement of all claims still outstanding at the time of payment and covered by this Balance Reservation.
The Reserved Goods shall be marked as our property. Any working on and processing of the Reserved Goods shall be carried out for us as manufacturer within the meaning of Section 950 BGB, but without obligating us. The worked and/or processed parts shall be deemed to be Reserved Goods within the meaning of No. 7.1 GTC. In the event of processing, combination and mixing of the Reserved Goods with other items by the Purchaser, we shall be entitled to co-ownership of the new item in proportion to the invoice value of the Reserved Goods to the invoice value of the other items used. If our ownership lapses as a result of combining or mixing, the Purchaser already now transfers to us the ownership rights to which he is entitled in the new stock or item to the extent of the invoice value of the Reserved Goods and shall keep them in safe custody for us free of charge. Our co-ownership rights shall be deemed to be Reserved Goods within the meaning of No. 7.1 GTC.
The Purchaser may sell the Reserved Goods in the ordinary course of business under his normal business and delivery conditions and as long as he is not in default, provided that the claims from the resale are transferred to us in accordance with No. 7.4 - No. 7.6 GTC. He is not entitled to dispose of the Reserved Goods in any other way.
8. Grades, dimensions and weights
Grades, dimensions, weights, capacities, performances, load-bearing capacities, load values and the like shall be determined in accordance with the DIN-EN standards or material sheets applicable at the time of conclusion of the contract. If no DIN-EN standards or material sheets exist, the corresponding Euro standards shall apply or, in the absence of such, commercial practice. References to standards, factory standards, material sheets or test certificates as well as information on qualities, dimensions, weights, capacity, performance, load-bearing capacity, load values and the like as well as usability are not assurances or guarantees, nor are declarations of conformity, manufacturer's declarations and corresponding marks such as CE and GS, but only guide values.
Should acceptance fail to take place on time or in its entirety, through no fault of our own, we shall be entitled to dispatch the goods without acceptance or to store them at the cost and risk of the Buyer and to charge it for this.
If assembly has been agreed as part of the Contractual Services, we shall notify the Purchaser after completion of the assembly services that the goods are ready for acceptance. If acceptance has been agreed in other cases, it can only take place in the supplying plant or our warehouse immediately after notification that the goods are ready for acceptance.
The Purchaser shall start the acceptance test immediately after receipt of the notification. The Purchaser may not refuse acceptance due to insignificant defects.
Acceptance shall be deemed to have taken place if the Purchaser uses the goods for their intended purpose for a period of at least 6 working days after receipt of the notice of readiness for acceptance without giving notice of at least one defect preventing acceptance.
The personal acceptance costs shall be borne by the Purchaser, the factual acceptance costs shall be charged to him in accordance with our price list or the price list of the supplying plant.
If the acceptance is not carried out, not carried out in time or not carried out completely through no fault of our own, we are entitled to dispatch the goods without acceptance or to store them at the expense and risk of the Purchaser and to charge him for them.
10. Dispatch, transfer of risk, packaging, partial delivery
We shall determine the route and means of dispatch as well as the forwarding agent and carrier.
If, through no fault of our own, transport by the intended route or to the agreed place of delivery within the intended time becomes impossible or substantially more difficult, we shall be entitled to deliver by another route or to another place; the additional costs incurred shall be borne by the Purchaser. The Purchaser shall be given the opportunity to comment beforehand.
The risk, including the risk of seizure of the goods, shall pass to the Purchaser for all transactions, including transactions which include deliveries which are carriage paid, free domicile and free place of use, when the goods are handed over to a forwarding agent or carrier, but no later than when they leave the warehouse or the supplying plant. In the event of collection by the Purchaser, the risk shall pass to the Purchaser as soon as the goods are placed at the Purchaser's disposal. In the event of a delay in delivery for which we are not responsible, the risk shall pass to the Purchaser on the day of receipt of notification that the goods are ready for dispatch. If goods are taken back for reasons for which we are not responsible, the Purchaser shall bear all risk until the goods are received by us. We shall provide insurance only upon written instruction and at the expense of the Purchaser. The obligation and costs of unloading and moving goods to their designated place shall be borne by the Purchaser.
The goods are delivered unpacked and not protected against rust. If customary in the trade, we shall deliver packaged. We shall provide packaging, protective and/or transport aids according to our experience at the Purchaser's expense. They will be taken back at our warehouse or factory. We do not assume the Purchaser's costs for the return transport or for the Purchaser's own disposal of the packaging.
We are entitled to make partial deliveries to a reasonable extent. Such partial deliveries shall be deemed to be independent deliveries and as such shall be remunerated separately by the Purchaser. In the event of delivery of partially faulty or defective goods, the Purchaser shall remain obliged to pay the price for the faultless or non-defective goods, unless the partial delivery of the faultless or non-defective goods is of no interest to him.
Customary excess and short deliveries of the contracted quantity are permissible. Larger deviations, in particular in the warehouse business, which are in the interest of a flawless material supply, are hereby deemed to be agreed.
11. Limitation of liability
Defects in material must be reported in writing immediately, at the latest 7 days after delivery. Defects in material which cannot be discovered within this period even in the case of proper inspection must be notified in writing immediately after discovery, at the latest before the expiry of the agreed or statutory limitation period, and any processing of the goods must be immediately ceased.
After an acceptance of the goods has been carried out by the Purchaser, the notification of defects in material that were detectable at the time of acceptance shall be excluded, unless the Purchaser has expressly reserved his rights with regard to defects in material at the time of acceptance.
In the event of a justified notification of defects in due time, we may, at our discretion, remedy the defect in material or deliver a defect-free item ("Subsequent Performance"). In the event of failure or refusal of Subsequent Performance, the Purchaser may reduce the purchase price or rescind from the contract after setting and unsuccessful expiry of a reasonable deadline. If the defect in material is not substantial, the Purchaser shall only be entitled to the right of reduction of the price. The Purchaser is not entitled to rescind from the contract if a construction work is the subject of the warranty, the Purchaser is solely or predominantly responsible for the defect in material or the defect in material for which we are not responsible occurs at a time when the Purchaser is
The Purchaser is not entitled to remedy a defect himself (or to commission a third party to remedy it) and to demand reimbursement of the necessary expenses. Insofar as the Purchaser makes changes to the goods himself or has them made by a third party without our consent, all rights due to a defect in material shall lapse.
If the Purchaser does not immediately give us the opportunity to convince ourselves of the defect in material, in particular if he does not immediately provide the rejected goods or samples thereof upon request, all rights due to the defect in material shall lapse.
If it turns out in the course of Subsequent Performance that there is no defect in material, we shall be entitled to charge the Purchaser for the expenses incurred. Insofar as we carry out work on the basis of a notice of defect by the Purchaser, this shall not constitute any acknowledgement of a defect, a claim for defects or an obligation to Subsequent Performance.
Samples, analysis data and other information on the quality or dimensions of the goods are non-binding framework information unless we have expressly given a guarantee in this respect. Such guarantees are only agreed if they are made expressly and in writing.
We shall only bear expenses in connection with Subsequent Performance insofar as they are necessary for the purpose of Subsequent Performance. We shall not assume expenses incurred because the sold goods have been relocated to a place other than the place of delivery or the place of assembly, unless this would correspond to their contractual use, in particular in the case of an agreed drop shipment.
The Purchaser's rights of recourse pursuant to Section 478 BGB shall remain unaffected (supplier recourse in the case of purchase of consumer goods).
The Purchaser shall inform us immediately if a third party asserts a claim of infringement of its rights by our Contractual Services towards the Purchaser. We will examine the third party's claim and decide on the further course of action. The Purchaser shall leave the control of the defense against the third party's claims to us and shall grant all powers of attorney and other authorizations necessary for the defense against the asserted claims. In particular, the Purchaser may not enter into any agreement with the third party regarding the asserted claims without our consent.
Insofar as it is established or cannot be ruled out in our view that the rights of the third party are infringed, we shall be entitled at our own discretion to modify the Contractual Services in such a way that they comply with the contractual agreements and can be used without infringing the rights of the third party, or to acquire a licence for the use of the rights of the third party. If the infringement of the third party's rights by the use of the Contractual Services has been legally binding established or if we have confirmed such infringement to the Purchaser, the Purchaser may demand a reduction of the price or rescind from the contract insofar as we have not either modified the Contractual Services or procured a licence for the use of the third party's rights within a reasonable period of time. We shall reimburse the Purchaser for any necessary costs incurred in defending against the asserted claim.
Any advice given by us, our employees or persons acting on our behalf as well as any information provided in connection therewith shall not constitute a contractual legal relationship or an ancillary obligation under the contract, so that we shall not be liable for any such advice, unless otherwise expressly agreed in writing.
No. 12 GTC shall apply to claims for damages.
12. Limitation of liability
For damagedue to breach of contractual and non-contractual obligations, in particular due to impossibility, delay, fault during the initiation of the contract, and tort, we shall only be liable - also for our organs, executive employees and other vicarious agents - in the event of negligent breach of material contractual obligations and limited to the damage typical for this type of contract foreseeable at the time of conclusion of the contract. Material contractual obligations are those obligations which enable the proper performance of this contract and on the observance of which the customer has relied and was entitled to rely.
The limitations according to No. 12.1 GTC shall not apply in cases of intent and gross negligence, in cases of mandatory liability according to the Product Liability Act, in cases of damage to life, body and health, and shall also not be applicable if and to the extent we have fraudulently concealed defects in the goods or guaranteed the absence of defects.
Thestatutory provisions on the burden of proof shall remain unaffected.
Unless otherwise agreed, claims of the Purchaser against us arising from or in connection with defects in the goods shall become time-barred 12 months after the transfer of risk or, if assembly has been agreed, 12 months after acceptance. This shall not affect limitation periods pursuant to Section 438 para. 1 no. 1 and no. 2 BGB and Section 634a para. 1 no. 2 BGB as well as the limitation of claims for damages arising from intentional and grossly negligent breaches of duty, damages arising from injury to life, body or health, damages pursuant to the Product Liability Act, damages in the event of fraudulent concealment of a defect as well as the limitation of statutory recourse claims. In cases of Supplementary Performance, the limitation period shall not start to run again.
We shall not be liable for defects caused by unsuitable or improper use of our goods, faulty assembly, commissioning or use by the Purchaser or third parties, normal wear and tear, or faulty or negligent handling. The same applies to the consequences of improper modifications or repair work carried out by the Purchaser or third parties without our consent.
13. Rights of use
To the extent that the Purchaser provides us with presentations, reports or other documents, materials, data or other information ("Purchaser Material"), the Purchaser grants us a royalty-free, worldwide, non-exclusive and non-transferable right to use the Purchaser Material for the purposes of providing the Contractual Services during the term of the contract, including the right to reproduce, store, make available to authorised persons by wire or wireless means, edit and combine the Purchaser Material with other documents, materials, data or information. We are also entitled to grant sub-licenses to third parties that we use for the provision of the Contractual Services
Subject to full payment of the agreed remuneration, we grant the Purchaser a non-exclusive right to use internally the work results (including any Planning Documents) created for the Purchaser within the scope of the Contractual Services for the purposes of using the goods in accordance with the contract.
As long as we do not use any Confidential Information of the Purchaser, we are entitled to create results for ourselves or third parties that are similar to or compete with the work results created for the Purchaser. In addition, we may use general knowledge, skills, experience, know-how, expertise, ideas, techniques, approaches, concepts and designs, which are used, developed or acquired by us or on our behalf in the context of the Contractual Services.
Confidential Information means all information and documents of a party which are not publicly known and which are received or become known by the other party in connection with the performance of the contract ("Confidential Information"). Such Confidential Information includes in particular the commercial provisions of the contract. Any Planning Documents are Confidential Information of us.
The Parties undertake to keep the Confidential Information confidential and (i) to protect it by appropriate and reasonable confidentiality measures against unauthorized access by third parties, (ii) to disclose it only to persons who need such Confidential Information for the purposes of implementing or enforcing this contract, and (iii) to use it exclusively for the implementation or enforcement of the contract.
Information shall be exempt from the obligation of confidentiality if it (i) was demonstrably already known to one party prior to the communication by the other party, (ii) was demonstrably already known to the public or publicly accessible prior to the communication or - without breach of these confidentiality obligations - becomes known to the public or generally accessible after the communication, (iii) must be disclosed due to an official or judicial order or mandatory legal provisions (in which case the disclosing party must inform the other party immediately of the order or obligation) and/or (iv) the respective other party has consented.
The provisions of Section 5 GeschGehG (German Act on the Protection of Business Secrets) shall remain unaffected.
The Purchaser is not entitled to assign or transfer rights and claims arising from the contract without our written consent. This does not apply to monetary claims within the meaning of Section 354a of the German Commercial Code (“HGB”).
16. Place of performance, place of jurisdiction and applicable
The place of performance for agreed assembly services is the place of assembly, otherwise for our deliveries for delivery ex works the delivery plant, for other deliveries our warehouse. The place of jurisdiction is, at our discretion, the registered office of our company in Sundern or the registered office of the Purchaser.
Thelaw of the Federal Republic of Germany, in particular the BGB and the HGB, shall apply to all legal relationships between us and the Purchaser in addition to these Terms and Conditions. The provisions of the Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
17. Severability clause
Should a provision in these GTC or a provision within the scope of other agreements be or become invalid, this shall not affect the validity of the remainder of the contract. In this case, the parties are obliged to replace the ineffective provision with a provision that comes as close as possible to it in the economic sense.
Technical changes and errors excepted.
Status: 9 October 2023