for SCHULTE LAGERTECHNIK
Gebr. Schulte GmbH & Co. KG
1. General / scope
Our general terms and conditions of sale and delivery are valid for all contracts with companies, legal persons under public law and special funds under public law, for deliveries and other services including contracts for services, particularly the delivery of shelving and shelving systems and their assembly. The purchase terms and conditions of the Buyer/Customer shall not be acknowledged even if we have not objected to them explicitly after receiving them.
Our quotations are non-binding. Oral agreements, promises, assurances and guarantees made by our employees in connection with the conclusion of the contract shall only be binding once we have confirmed them in writing.
In case of doubt, the latest version of Incoterms are decisive for the interpretation of trade terms.
"Buyer" in the sense of these terms and conditions is also the "Customer" in the case of contracts for services.
Unless agreed otherwise, the prices and terms and conditions stated in our price list valid at the time the contract is concluded shall apply. The price calculations are based on the determined weights and sizes. External packaging shall be charged additionally at cost price.
Our prices apply ex works, exclusive of packaging plus VAT without assembly. The Buyer shall bear the costs of all charges, customs duties, taxes and other fees. Our prices are based on usual freight and transport conditions insofar as these are included in the price. Additional costs incurred as a result of difficulties with or obstructions to the freight or transport conditions shall be borne by the Buyer. The same shall apply in the case of dead freight insofar as we are not responsible for this.
If charges or other external costs included in the agreed price change more than 4 weeks after the contract is concluded or if new costs are incurred, we shall be entitled to modify the price as appropriate.
If the production costs increase by more than 10% between the conclusion of the contract and its performance, we shall be entitled to increase our price accordingly. We shall then calculate the price applicable on the day of performance. The same applies to orders where no price agreement is in place.
3. Payment and settlement
Unless otherwise agreed or stated in our invoices, payment must be made – without deductions, particularly without a discount deduction – in such a way that we have the amount at our disposal on the date it is due. The Buyer shall bear the costs of the payment transaction. The Buyer shall only have a right of retention and a right to set off counterclaims insofar as the Buyer's claims are undisputed or have been determined by a court of law.
The Buyer shall be in default no later than 10 days after the maturity and receipt of the invoice/payment plan or after receipt of the aspect of performance.
If, after conclusion of the contract, we identify that our payment claim is being put into jeopardy as a result of the Buyer's inability to pay, we shall be entitled to exercise our rights arising from Section 321 of the German Civil Code (defence of insecurity). In such cases, we shall also be entitled to render payable all unexpired claims from the ongoing business relationship with the Buyer. In other cases, the defence of insecurity shall extend to all other outstanding deliveries and aspects of performance from the business relationship with the Buyer. We may set a reasonable period of time for the Buyer to make payment of the purchase price or furnish security, at its discretion, in return for performance. If this time period elapses without success, we shall be entitled to rescind from the contract and claim for damages.
An agreed discount shall only ever relate to the value of the invoice excluding freight costs and shall require the complete settlement of all amounts due from the Buyer at the time of the discount.
4. Execution of the delivery, delivery periods and dates
Our delivery obligation shall always be subject to the condition that we receive correct, punctual and complete deliveries from our own suppliers unless we are responsible for the incorrect, late or incomplete delivery.
Any delivery times specified shall be approximate and not fixed. Delivery periods shall begin on the date on which we confirm the order and shall only apply on the condition that all particularities of the order are clarified in good time and that all obligations on the part of the Buyer are fulfilled in good time. Examples of such obligations of the Buyer are the furnishment of all official certifications, the provision of letters of credit or warranties, and the payment of deposits or securities.
The time of shipping from the factory or warehouse shall be decisive for determining adherence to delivery periods and dates.
In the event that goods cannot be dispatched on time through no fault of our own, the delivery periods and times shall be deemed to have been adhered to when notification of the goods' readiness for dispatch has been issued.
If the delivery/collection is delayed for reasons for which the Buyer is responsible, the Buyer shall have to bear the costs for storage and the risk of accidental loss.
Events of force majeure shall entitle us to delay delivery for the duration of the obstruction and for a reasonable start-up period. This shall also apply if such events occur during an existing delay. Force majeure shall include measures affecting monetary policy, trade policy or other sovereign matters, strikes, lock-outs, interruptions to operations for which we are not responsible, such as fire, machine or roller breakdowns, lack of raw materials or energy, obstruction of transport routes, delays in import/customs clearances, as well as any circumstances for which we are not responsible that make it significantly more difficult or impossible for us to complete our deliveries or services. If, subsequent to the aforementioned events, the performance of the contract is unreasonable for one of the parties to the contract, said party may demand that the contract be rescinded.
The Buyer shall unload and handle the products without delay and in the proper manner at its own expense and risk. If we assist in this, we do so without any legal obligation and liability for slight negligence is excluded. The Buyer shall, free of charge, provide any equipment required by us promptly, in the sufficient quantity and for the appropriate period of time.
6. Retention of title
All goods supplied shall remain our property (goods subject to the retention of title) until all claims, particularly any claims on outstanding balances, arising from the business relationship are fulfilled (retention of title until outstanding balances have been settled). This shall also apply to any future and contingent claims, such as those arising from acceptor's bills of exchange, as well as in cases where payments are made for specifically designated claims. This retention of title until outstanding balances have been settled shall finally expire with the settlement of all claims that are still outstanding at the time of payment and which are covered by this retention of title.
Processing and treatment of the reserved goods shall be carried out for us as the manufacturer in the sense of Section 950 of the German Civil Code, without any obligation on our part. The processed and/or treated goods shall be considered goods subject to retention of title in the sense of Clause 6.1 of these terms and conditions. If the Buyer processes, combines or mixes the goods subject to retention of title with other goods, we shall be entitled to proportional joint title to the new goods equivalent to the invoice value of the reserved goods as a proportion of the other goods that are used. In the event that our title expires as a result of combining or mixing goods, the Buyer shall herewith transfer to us the title rights it has to the new item or product at the level of the invoice value of the goods subject to retention of title, and shall store these free of charge on our behalf. Our joint title rights shall apply in the same way as those relating to goods subject to retention of title in the sense of Clause 6.1 of these terms and conditions.
The Buyer may sell the goods subject to retention of title within the normal course of business in accordance with its normal terms and conditions and as long as it is not in default, provided that the claims arising from the resale are transferred to us in accordance with Clauses 6.4 to 6.6 of these terms and conditions. The Buyer shall not be entitled to dispose of the goods subject to retention of title in any other way.
The claims arising from the resale of the goods subject to retention of title or another legal reason are hereby assigned to us, together with all securities which the Buyer has acquired for the claim. They shall be utilised as security in the same manner as the goods subject to retention of title. If the Buyer sells the goods subject to retention of title together with other goods not sold by us, the claim arising from the resale shall be assigned to us proportionately, equivalent to the invoice value of the goods subject to retention of title as a proportion of the other goods sold. In the event that goods are sold to which we hold joint title in accordance with Clause 6.2 of these terms and conditions, a share corresponding to our proportion of joint title shall be assigned to us. We hereby accept the assignment.
The Buyer shall be entitled to collect claims arising from the resale. This right of collection shall expire if revoked by us; at the very latest, however, it shall expire in the event of default of payment, failure to honour a bill of exchange or a cheque, or an application to open insolvency proceedings. We shall only exercise our right of revocation if, after the conclusion of the contract, it should become evident that our payment claim arising from this contract or from other contracts with the Buyer is being put into jeopardy by the Buyer's inability to pay. Upon written request by us, the Buyer shall undertake to notify its customers immediately of the assignment to us and provide us with all the necessary information regarding collection.
An assignment of claims arising from resale shall not be permitted unless it takes place by way of genuine factoring, which is notified to us and whose proceeds exceed the value of our secured claim. Our claims shall become due immediately upon the factoring proceeds being credited.
The Buyer must inform us immediately in the event of any seizure or other attachment by third parties. The Buyer shall bear all costs required to suspend such seizure or attachment or to return the reserved goods unless the costs are paid by third parties.
If the Buyer defaults on payment or fails to honour a bill of exchange when it is due, we shall be entitled to take back the goods subject to retention of title and, if necessary, to enter the Buyer's premises for this purpose. The same shall apply if, after conclusion of the contract, it should become evident that our payment claim from this contract or from other contracts with the Buyer is being put into jeopardy by the Buyer's inability to pay. The return of the goods shall not constitute a withdrawal from the contract.
If the realisable value of the existing securities exceeds the secured claims including additional claims (interest, costs and similar) by more than 50% in total, we shall undertake, at the request of the Buyer, to release securities at our discretion.
7. Qualities, dimensions and weights
Qualities, dimensions, weights, capacities, performance, load capacities, load values and similar are determined based on the DIN/EN standards and material specifications applicable at the time the contract is concluded. In the absence of DIN/EN standards or material specifications, the corresponding EURO standards shall apply, and if none of these exist, the accepted commercial practice shall apply. Reference to standards, industrial standards, material specifications or test certificates as well as information concerning qualities, dimensions, capacities, performance, load capacities, load values and similar as well as usability shall not be deemed to be assurances or guarantees, and serve merely as guidelines. The same also applies to declarations of conformity, manufacturer's declarations and corresponding markings such as CE and GS.
When acceptance has been agreed, it may only take place in the delivery factory or at our warehouse immediately upon receipt of notification of acceptance. The Buyer shall bear the personal acceptance costs; however the actual acceptance costs shall be charged based on our price list or the price list of the delivery factory.
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.
9. Dispatch, transfer of risk, packaging, partial delivery
We shall determine the route and means of dispatch as well as the forwarder and carrier.
If, through no fault of our own, transport on the intended route or to the intended location at the intended time becomes impossible or is significantly impeded, we shall be entitled to make delivery by another route or to another location; the Buyer shall bear any additional costs that arise. The Buyer shall be given a chance to raise any objections before we proceed in this way.
The risk – including the risk of seizure of goods – shall pass to the Buyer at the point when the goods are transferred to the forwarder or carrier; at the latest, however, this shall take place when the goods leave the warehouse or delivery works. This shall apply to all transactions, including cases involving prepaid delivery, free-house delivery and free delivery to the point of use. In the case of collection by the Buyer, the risk is transferred as soon as the goods are provided to the Buyer. In the event of a delay in delivery for which we are not responsible, the risk is transferred to the Buyer on the date that it receives notification that the goods are ready for dispatch. Should goods be taken back for reasons for which we are not responsible, the Buyer shall bear all risk until we receive the goods. We shall only provide insurance cover if instructed to do so by the Buyer and at its expense. The duty to unload and the costs for unloading shall be borne by the Buyer.
The goods shall be delivered without packaging or protection against rust. If customary, we shall deliver the goods in a packaged condition. We shall provide packaging, protection and/or transport equipment according to our experience and at the expense of the Buyer. These shall be taken back to our warehouse or factory. We are not liable for any costs incurred by the Buyer to return or dispose of the packaging. The Buyer shall undertake to provide equipment, such as loading cranes, forklifts, aerial platforms and similar, that is required for unloading, handling and assembly free of charge, to a sufficient scale and within a reasonable time frame.
The Buyer is also obligated to enable the necessary access to its premises for at least 10 hours per workday to carry out assembly work, and to provide adequate lighting, ventilation and heating in the rooms as well as the necessary energy sources, in particular electricity, gas and water, free of charge.
We shall be entitled to make partial deliveries to a reasonable extent. Partial deliveries of this nature shall be treated as separate deliveries and must be paid for separately by the Buyer. In the event that some of the goods delivered are faulty or defective, the Buyer shall remain obligated to pay the price for the non-faulty or non-defective goods unless it has no interest in the partial delivery of the non-faulty or non-defective goods.
Excess and short deliveries of the agreed quantities as customary in the industry are permitted. Larger deviations, which can occur in the warehousing industry in particular and help ensure the smooth delivery of materials, are deemed to be agreed upon.
10. Notice of defect and guarantee, warranty
Any material defects of the goods must be reported in writing immediately and no later than 7 days after delivery. Material defects which could not be detected during this period despite even the most careful examination must be reported in writing immediately upon detection and at the latest before the expiry of the agreed or statutory period of limitations, and any processing or treatment of the goods must be suspended straight away.
If transport damage is detected, the Buyer must note this down in the shipping documents, have the facts recorded by the relevant authorities without delay and notify us in writing.
Once an agreed acceptance of the goods has been carried out by the Buyer, any claims for material defects that could have been detected during the agreed type of acceptance are excluded.
If the notice of defect is justified and made within the specified time frame, we may, at our discretion, rectify the defect or deliver a non-defective item (supplementary performance). In the case of failure or refusal to accept the supplementary performance, the Buyer may reduce the purchase price or withdraw from the contract after a reasonable deadline has been set and expired without success. If the material defect is minor in nature, the Buyer shall only be entitled to reduce the purchase price. The Buyer shall not be entitled to withdraw from the contract if construction work is part of the guarantee or the defect would only result in a minor reduction in the value or suitability of the performance made by us.
If the Buyer does not immediately give us the opportunity to inspect the material defect, and, in particular, if it does not make the rejected goods or samples available to us immediately upon our request, all rights associated with the material defect are rendered void.
Templates, samples, analysis data and other information regarding the properties or dimensions of the goods are non-binding general details unless we have expressly provided a warranty for them.
We shall only be liable for any expenses relating to the supplementary performance provided they are appropriate on an individual basis in relation to the purchase price. We shall not be liable for any expenses that arise as a result of the goods sold being transported to a location other than the headquarters or branch of the Buyer unless this corresponds to the contractual use of the goods, particularly where drop shipment has been agreed.
The Buyer’s rights of recourse pursuant to Sections 445 a, 439 Paragraphs 2 and 3 as well as Section 475 Paragraphs 4 and 6 and Sections 437, 478, and 474 of the BGB (German Civil Code) remain unaffected. We are also liable, in particular, for transport, road, labour and material costs as well as costs incurred in development, repair and reassembly works, i.e. for removal of a defective item and assembly or installation of a reworked or delivered defect-free item. Section 377 of the HGB (German Commercial Code) remains unaffected.
Any advice given by us, our employees or persons acting on our behalf, as well as any data relating hereto shall not constitute either a contractual legal relationship or an accessory obligation from the contract, with the result that we shall not be liable for any such advice unless we have made explicit written agreements to the contrary.
We shall not be liable for any lost profit or other financial losses incurred by the Buyer.
11. Limitation of liability
We, including our entities, executive employees and other vicarious agents, shall only be liable for breaches of contractual and extra-contractual obligations – particularly those concerning impossibility, default, fault during contract preparation and tortious actions – in the event of intent and gross negligence, limited to damage that is typical of the contract and could have been foreseen upon conclusion of the contract.
This limitation shall not apply in cases of culpable breach of material contractual obligations where achievement of the contractual purpose is put into jeopardy; in cases of mandatory liability under the German Product Liability Act; in the event of danger to life, limb and health; or in cases where we have maliciously concealed product defects or have guaranteed the absence of such defects.
The statutory provisions on burden of proof shall remain unaffected.
Unless otherwise agreed or prescribed by law, contractual claims that arise for the Buyer against us based on or in relation to the delivery of the goods expire 12 months after the risk has been transferred. This period of limitations also applies to goods that are used in accordance with their usual purpose for a building and which have caused it to become defective. Our liability resulting from intentional or grossly negligent breaches of obligations and the limitation of statutory rights to recourse shall remain unaffected. The period of limitations shall not restart in the case of supplementary performance.
Regardless of negligence or fault, we shall be liable for the properties of the goods on which the contract is based under a durability guarantee for a period of 3 years from the point at which the risk has been transferred, provided that any defects are not the result of improper handling or use of the goods in breach of the contract.
We shall not be liable for any defects that arise as a result of unsuitable or improper use of our goods, incorrect assembly or commissioning by the Buyer or a third party, normal wear and tear, or incorrect or negligent handling. The same applies to the consequences of improper modifications or repair work carried out by the Buyer or a third party without our consent.
12. Right of access
The Buyer agrees to permit access to its sites to representatives of the Materials Testing Office of North Rhine-Westphalia (MPA NRW) at any time during usual business hours and to permit testing of the quality-certified warehouse shelving and shelving systems. The Buyer shall not incur any costs for any inspections as these are carried out free of charge as part of the quality guarantee.
13. Place of fulfilment, legal venue and applicable law
The place of fulfilment for our deliveries shall be the delivery factory in the case of deliveries ex works and our warehouse for other deliveries. The legal venue shall, at our discretion, be the registered office of our company in Sundern or the registered office of the Buyer.
In addition to these provisions, the law of the Federal Republic of Germany, the German Civil Code and German Commercial Code in particular, shall apply to all legal relationships between us and the Buyer. The provisions of the Convention on Contracts for the International Sale of Goods shall not apply.
14. Severability clause
If a provision in these General Terms and Conditions or a provision that forms part of other agreements is or becomes invalid, this shall not affect the validity of the rest of the contract. In such a case, the parties to the contract undertake to replace the invalid provision with an arrangement that comes as close as possible in terms of its economic effect.
Technical modifications and errors shall remain excepted.