SCHMIDT-KUPPLUNG GmbH
General Terms and Conditions of Sale and Delivery

1. General Provisions, Scope of Application

1.1. These General Terms and Conditions of Sale and Delivery (TOS) apply to all our business relationships with our customers (purchasers). These TOS apply only if the purchaser is a business person or business entity (§ 14 BGB/German Civil Code), a legal entity under public law or a special fund under public law.

1.2. These TOS apply in particular to contracts for the sale and/or supply of movable goods, regardless of whether such goods are manufactured by ourselves or purchased by us from third-party suppliers (§§ 433, 651 BGB). These TOS, as amended from time to time, also apply as a framework agreement to any contracts for the sale and/or supply of movable goods entered into in future with the same purchaser without any particular reference to their application being required from us in each individual case.

1.3. These TOS apply to the exclusion of all others. Deviating, conflicting or complementary terms and conditions of the purchaser shall only be incorporated in the agreement if and to the extent that we have expressly consented to their application. Such consent shall be required in any circumstances whatsoever, including, for example, where we have knowledge of conflicting conditions of the purchaser and effect deliveries to the purchaser without reservation.

1.4. Individual agreements made with the purchaser in a particular case (including additional agreements, supplements, amendments) shall always take precedence over these TOS. In respect of the contents of such agreements, a written agreement and/or written confirmation from us shall be authoritative.

1.5. Any reference to the application of statutory provisions is for purposes of clarification only. Statutory provisions shall also apply without such clarification, unless clearly modified or explicitly excluded by these TOS.

2. Offer, Conclusion of Contract, Country of Destination

2.1. The purchaser’s purchase order shall constitute a binding offer to contract which we may accept within a period of two weeks by sending an order confirmation or by making delivery of the goods. Any previous offers made by us are without obligation and subject to change without notice.

2.2. In case of purchase orders placed via electronic means, we shall promptly acknowledge the receipt of the order. Such acknowledgement of receipt shall, however, not constitute an acceptance of the purchaser’s offer by us.

2.3. We reserve all rights of ownership and copyright in any images, drawings, calculations and other documents. The same applies also to any written documents identified as “confidential“. The purchaser shall not disclose such documents to third parties without our prior express consent in writing.

2.4. The goods are intended for use in the country specified in the order confirmation only. If no country is specified in the order confirmation, the agreed country of destination shall be deemed to be Germany.

2.5. None of our employees, except chief executive officers and authorised signatories has the authority to enter into any oral agreements deviating from these TOS. That applies in particular to any assumption of guarantees.

2.6. Unless otherwise provided for, customary trade terms shall be construed in accordance with Incoterms 2000, including amendments valid at the time of the conclusion of the contract.

3. Prices, Price Adjustment, Terms of Payment, Invoice Checking

3.1. Unless otherwise agreed in individual cases, prices charged shall be our current prices in effect at the date of the conclusion of the contract and shall be quoted ex warehouse and exclusive of packaging and statutory VAT at current rate.

3.2. The minimum order value is 78.00 €. Where purchase orders are placed for goods with gross invoice values below the minimum order value, the purchaser will nonetheless be charged goods at a value of 78.00 €.

3.3. In case of sale by delivery to a place other than the place of performance at the purchaser’s request (section 5.1.), the costs of transport from warehouse and of any transport insurance requested by the purchaser shall be borne by the purchaser. Any customs, charges, taxes and other public duties shall be borne by the purchaser.

3.4. We shall not take back any transport packaging and other packing materials subject to the Packaging Ordinance. Any such materials shall become the property of the purchaser.

3.5. Where a price increase has occurred at the time when performance is rendered due to a change of market prices or an increase of third-party charges incurred in the rendering of performance, the increased price shall apply. If such increased price exceeds the agreed price by 20 % or more, the purchaser shall have the right to withdraw from the contract. Such right of withdrawal shall be exercised without undue delay after the increased price has been notified.

3.6. Unless otherwise agreed, the purchase price shall be due to be paid without any deductions within 30 days of the invoice date. Payments made within 14 days of the invoice date shall be subject to a cash discount of 2 %. The relevant date of payment is the date of our receipt of payment.

3.7. The purchaser shall be in default of payment upon expiry of the payment period. The purchase price shall bear interest at the applicable statutory rate during the period of default. We reserve the right to claim damages for any further losses caused by default. Any of our rights against merchants under commercial law to claim interest from the due date shall remain unaffected (§ 353 HGB/German Commercial Code).

4. Delivery Periods, Delay in Delivery, Security

4.1. Delivery periods will be individually agreed and/or indicated by us upon acceptance of the purchase order. If delivery dates or periods are neither agreed nor indicated, the delivery period shall be 12 weeks from the conclusion of the contract.

4.2. As a precondition for the observance of delivery periods, the purchase order must be entirely clear, all approvals must have been granted and we must have received any documents to be provided by the purchaser. Delivery periods shall be extended appropriately if and to the extent that any of the foregoing prerequisites is not fulfilled on time. Delivery periods shall be considered to be met if the goods are ready for dispatch within the agreed period and a notification to such an effect has been sent to the purchaser.

4.3. We shall be entitled to require the purchaser to make advance payment or to provide collateral security as a precondition for effecting outstanding deliveries if, after the conclusion of the contract, we become aware of any circumstances which may reasonably be considered to significantly affect the purchaser’s creditworthiness and as a result of which payment by the purchaser of our outstanding claims in the contractual relationship concerned may be in jeopardy (e.g. following a petition to commence insolvency proceedings). We shall furthermore be entitled – after setting a deadline where necessary – to withdraw from the contract (§ 321 BGB). In case of contracts for the manufacture of single items (custom-made products), we may withdraw from the contract immediately; the statutory provisions concerning the dispensability of deadlines shall remain unaffected.

4.4. If and to the extent that we are unable to meet binding delivery periods for reasons beyond our responsibility (unavailability of performance), we shall promptly notify the purchaser thereof and indicate at the same time the expected new delivery period. If performance remains unavailable even within such new delivery period, we shall be entitled to withdraw from the contract in full or in part and shall promptly refund any consideration received from the purchaser. Such unavailability of performance shall be deemed to exist in particular if, where we have entered into covering transactions equivalent in all respects, suppliers fail to supply us in a timely manner. Such covering shall be deemed to be in place if, at the time of the conclusion of the contract, we are a party to a supply contract which, from an objective point of view and under normal circumstances, enables us to supply the purchaser with the same degree of certainty as promised. All of our statutory rights of withdrawal and of termination as well as the statutory provisions on the winding-up of the contract where the duty of performance is excluded (e.g. where performance and/or subsequent performance is impossible or cannot reasonably be expected to be made) shall remain unaffected. Any of the purchaser’s rights of withdrawal and of termination under section 8 of these TOS shall likewise remain unaffected.

4.5. The occurrence of delays in delivery by us shall be determined in accordance with statutory provisions. However, a reminder by the purchaser shall be required in any case. If delivery by us is delayed, the purchaser may claim liquidated damages for any loss incurred as a result of such delay. Such liquidated damages shall be payable in an amount of 0.5 % of the net price (value of the delivery) for each full calendar week of the delay, however not exceeding a maximum amount of 5 % of the value of the delivery affected by the delay. We reserve the right to prove that the purchaser incurred no damage at all or that the damage incurred is significantly less than the aforementioned amount of liquidated damages.

5. Delivery, Passing of Risk, Acceptance, Delay in Acceptance

5.1. Delivery shall be ex warehouse; the latter place shall also be the place of performance. Goods shall be delivered to another place of destination upon the request and at the expense of the purchaser (sale by delivery to a place other than the place of performance at the purchaser’s request). Unless otherwise agreed, we shall determine the method of shipment in our own discretion (including without limitation carrier, routing, packaging).

5.2. We shall be obliged to respect foreign packing, weighing and customs regulations if the purchaser provides precise instructions to us in a timely manner. Any additional costs resulting therefrom shall be borne by the purchaser.

5.3. The risk of accidental loss or accidental deterioration of the goods shall pass to the purchaser no later than upon delivery. However, in case of sale by delivery to a place other than the place of performance at the purchaser’s request, the risk of accidental loss or deterioration as well as of any delay in delivery shall pass to the purchaser upon hand-over to the forwarder, carrier or other person or agent entrusted with the shipment. If and to the extent that deliveries are subject to acceptance, the risk shall pass upon such acceptance. Further in respect of such agreed acceptance, the statutory provisions for contracts for work and services apply correspondingly and in all respects. Delivery and/or acceptance shall also be deemed to have occurred in the case of any delay in acceptance by the purchaser.

5.4. If acceptance by the purchaser is delayed, if the purchaser fails to provide active co-operation or if delivery by us is delayed for any other reason for which the purchaser is responsible, we shall be entitled to claim damages for any losses caused by such delay or failure, including additional expenditures (e.g. storage costs). We shall be entitled to charge the purchaser for compensation for such losses by way of liquidated damages in the amount of 0.03 % of the purchase price of the delivered items for each calendar day, or part thereof, beginning with the end of the delivery period or – in the absence of such delivery period – with our notification of readiness for dispatch of the goods.

5.5. The right to prove any higher damage incurred as well as any of our statutory rights (including without limitation claims for reimbursement of additional expenditure, claims for appropriate compensation, right of termination) shall remain unaffected; the amount payable as compensation by way of liquidated damages shall, however, be offset against any such further claims. The purchaser shall remain entitled to prove that we suffered no damage at all or that the damage incurred is significantly less than the aforementioned amount of liquidated damages.

6. Liability for Defects

6.1. Unless otherwise provided for in the following, the purchaser’s rights in respect of defects in quality or title shall be governed by statutory provisions. Special statutory provisions on final deliveries of products to a consumer shall in any case remain unaffected (recourse against supplier under §§ 478, 479 BGB).

6.2. Our liability for defects shall primarily be based on such specification of the goods as is agreed with the purchaser. Such a specification of goods shall be considered to have been agreed where product descriptions which are referred to as such (including from the manufacturer) have been provided to the purchaser prior to its purchase order or have been incorporated in the agreement in the same way as these TOS.

6.3. In the absence of any agreed specification of the goods, the existence of defects therein shall be determined in accordance with statutory provisions (§ 434 para. 1, cl. 2, 3 BGB). We shall, however, not be liable for any representations made to the public by the manufacturer or by any other third party (e.g. contents of advertisements).

6.4. Goods shall not be deemed defective where deterioration is caused by normal wear and tear that can be attributed to typical usage or is prematurely caused by unusual usage, such as increased load conditions. Adaptations made in the course of technological progress without impacting the product functionality shall likewise not be considered to be defects.

6.5. The purchaser’s warranty claims shall be subject to the proviso that the purchaser has complied with its statutory obligations of immediate examination and notification of defects (§§ 377, 381 HGB). If goods are found to be defective during such examination or afterwards, we shall immediately be notified in writing. The notification shall be deemed immediate if made within one week; dispatch in due time shall suffice to meet the deadline. Irrespective of such obligation of immediate examination and notification, the purchaser shall notify in writing all apparent defects (including wrong deliveries and short deliveries) within three days of receipt of delivery; dispatch in due time shall suffice to meet the deadline. In case of failure by the purchaser to immediately examine goods and notify defects as required, our liability for any non-notified defects is excluded.

6.6. If a delivered item is defective, we shall initially be free to choose whether to effect subsequent performance by remedying defects (rectification) or by delivering a product which is free of defects (replacement). Any right to refuse the chosen kind of subsequent performance which may be available according to statutory provisions shall remain unaffected.

6.7. We shall be entitled to require the purchaser to make payment of the purchase price, if due to be paid, as a precondition for effecting any subsequent performance owed to the purchaser. The purchaser shall, however, be entitled to withhold a fraction of the purchase price which is in reasonable proportion to the defect.

6.8. The purchaser shall allow us such time and opportunity as is necessary to effect any subsequent performance owed to the purchaser, which shall particularly require the purchaser to deliver any goods claimed to be affected by the defect to us for purposes of examination. In case of replacement delivery, the purchaser shall return the defective item to us as provided by statutory provisions.

6.9. We shall bear any necessary expenses incurred for examination and subsequent performance, including without limitation costs of transport, travelling, work and materials if the product is confirmed to be defective. If, however, the purchaser’s complaint turns out to be unjustified, we may claim compensation from the purchaser for any expenses resulting therefrom.

6.10. If subsequent performance has failed, if a reasonable period for subsequent performance to be set by the purchaser has expired to no avail, or if such period was not required to be set according to statutory provisions, the purchaser may withdraw from the contract or reduce the purchase price. The right to withdraw from the contract shall, however, be excluded in the case of minor defects.

6.11. The purchaser’s claims for damages and/or for reimbursement of wasted expenditures shall be subject to the limitations according to section 8; unless as admitted thereunder, such claims shall be excluded.

7. Intellectual Property Rights

7.1. Unless otherwise agreed, any of our supplies shall be free of third-party intellectual and industrial property rights or copyrights (hereinafter referred to as IP rights); that shall, however, apply to the country of destination only. If claims are raised against the purchaser by a third party on the ground of any infringement of IP rights caused by our supplies being used in accordance with the agreement, we shall be liable to the purchaser within the period specified in section 9 as follows:

a) We shall, at our option and at our own expense, either obtain a licence to use the supplies concerned, modify these in such manner as to ensure that any infringement of third-party IP rights is excluded or deliver a replacement. If we are unable to effect any of the foregoing on reasonable terms, the purchaser shall be entitled to the statutory rights to withdraw from the contract or to reduce the purchase price.

b) We shall be liable for damages as provided in section 8.

c) We shall be bound by the aforementioned obligations only if and to the extent that the purchaser has promptly notified us of any claims raised by third parties, refrains from acknowledging any infringement and that any of our options to take defensive measures and/or to enter into settlement negotiations remain unaffected. If the purchaser ceases to use supplies in order to mitigate damages or for any other good cause, the purchaser shall be under the obligation to advise the third party that such cessation of use is not to be construed as an acknowledgement of any infringement of IP rights.

7.2. The purchaser’s rights shall be excluded if and to the extent that the purchaser is responsible for the infringement of IP rights.

7.3. The purchaser’s rights shall furthermore be excluded if and to the extent that the infringement of IP rights was caused by any specific instructions of the purchaser, by any use of supplies which was not foreseeable by us, or by the supplies being altered by the purchaser or being used together with goods which were not supplied by us.

7.4. In respect of infringements of IP rights, the provisions on defects in quality as set forth in section 6 apply correspondingly. Such provisions apply also correspondingly in respect of any defects in title.

7.5. Any claims of the purchaser against us and our vicarious agents on the grounds of defects in title other than or exceeding those set forth in this section are excluded.

7.6. If and to the extent that the purchaser is responsible for infringements of IP rights, the purchaser shall indemnify us and hold us harmless against all third-party claims arising from such infringements by the purchaser, including any necessary legal costs incurred.

8. Other Claims, Liability

8.1. Unless otherwise provided for in these TOS, including the following provisions, our liability for any breach of contractual and non-contractual duties shall be governed by the applicable statutory provisions.

8.2. We shall be liable for damages – on whatever legal grounds – in case of intentional conduct and gross negligence. In case of simple negligence, we shall only be liable

a) for damage from injury to life, body or health,

b) for damage caused by breach of an essential contractual obligation (the fulfilment of which is fundamental to the proper execution of the contract and may regularly and justifiably be relied upon by the purchaser); in such case, our liability shall, however, be limited to foreseeable damage typical of the contract.

8.3. The limitations of liability as set forth in section 8.2. shall not apply in case of fraudulent concealment of defects by us or of any warranty given by us as to the quality of the goods. The same shall apply to claims of the purchaser under the Product Liability Act.

8.4. In case of any breach of duty other than relating to defects, the purchaser shall only be entitled to withdraw from the contract or to terminate the contract if the breach occurred through our fault. Any rights of the purchaser to terminate the contract at any time and for any reason (including without limitation the right of termination under §§ 651, 649 BGB) are excluded. Unless otherwise stated, the statutory requirements and legal consequences apply in addition.

9. Limitation Periods

9.1. Notwithstanding § 438 para. 1, cl. 3 BGB, any claims in respect of defects in quality or title shall be subject to a general limitation period of one year from the date of delivery, provided that the purchaser is a business person or a business entity. If performance is subject to acceptance, the period of limitation shall start to run as of the date of acceptance.

9.2. Any special statutory provisions on third-party claims for surrender in rem (§ 438 para. 1, cl. 1 BGB), on buildings and building materials (§ 438 para. 1, cl. 2 BGB), on fraudulent concealment by the seller (§ 438 para. 3 BGB) and on rights of recourse against the supplier in case of final deliveries to a consumer (§ 479 BGB) shall remain unaffected.

9.3. The aforementioned limitation periods under statutory sales law shall also apply to any contractual and non-contractual claims for damages by the purchaser arising from defects in goods, unless, in the particular case, the application of the general statutory limitation period (§§ 195, 199 BGB) should result in a shorter limitation period. Any limitation periods provided under the Product Liability Act shall in any case remain unaffected. Unless otherwise stated, the purchaser’s claims for damages under section 8 shall be exclusively subject to the statutory limitation periods.

10. Reservation of Ownership

10.1. All goods sold shall remain our property until receipt of full payment of all claims arising now or in future from the sales contract and from the ongoing business relationship (secured claims).

10.2. Any goods delivered subject to reservation of ownership shall not be given in pledge to any third party, nor assigned as collateral security until full payment of the secured claims is received. The purchaser shall promptly notify us in writing of any action or attempt by third parties to seize or take possession of goods owned by us.

10.3. If the purchaser acts contrary to the contract, including without limitation if the purchaser fails to make payment of the purchase price when due, we shall have the right in accordance with statutory provisions to withdraw from the contract and to claim restitution of any goods on the grounds of the reservation of ownership and the withdrawal from the contract. In case of failure by the purchaser to make payment of the purchase price when due, we shall be entitled to exercise such rights only if we have set the purchaser a reasonable deadline for payment to no avail or if such deadline is dispensable according to statutory provisions.

10.4. The purchaser shall be permitted to resell and/or further process any goods subject to the reservation of ownership in the ordinary course of business. In such case, the following provisions apply in addition:

a) The reservation of ownership shall extend to any products in their full value which have been manufactured by further processing, mixing or combining our goods with other goods; in such case, we shall be deemed to be the manufacturer of any such manufactured product. Where such further processing, mixing or combination involves goods which continue to be subject to third-party ownership rights, we shall become a joint owner of the manufactured product in such proportion as corresponds to the invoice value of the goods delivered by us in relation to that of any other goods involved in such processing, mixing or combination. Unless otherwise stated, such manufactured product shall be subject to the same provisions as any goods delivered subject to reservation of ownership.

b) Any claims against third parties arising from the resale of goods or products are now assigned to us by the purchaser as collateral security in their full amount and/or, as the case may be, to the extent of our joint ownership as provided in the foregoing paragraph. We accept such assignment. Any obligations of the purchaser provided in section 10.2 shall also apply in respect of the assigned claims.

c) The purchaser shall remain authorised, apart from us, to collect any outstanding debts. We agree to refrain from any collection of such debts for as long as the purchaser continues to fulfil its payment obligations to us, the purchaser is not in default of its payment obligations, no petition to commence insolvency proceedings is filed and the purchaser’s financial circumstances are not otherwise unfavourable. In the event, however, that one of the aforementioned circumstances occurs, we may require the purchaser to notify us of all assigned claims and their debtors, to provide any information necessary for purposes of collection, to deliver any documents relating thereto as well as to notify all third-party debtors of the assignment of those claims.

d) If the realisable value of collateral securities exceeds our claims by more than 10 %, we shall release, upon the purchaser’s request, securities of our own choosing.

10.5. In the event that the reservation of ownership in the form provided hereinabove is legally ineffective under the laws of the country where the goods subject to such reservation of ownership are situated, the purchaser shall co-operate in creating in our favour such right of security in accordance with the laws of such country.

11. Cancellation by the Purchaser

11.1. The purchaser shall be entitled to cancel its purchase order without cause. If, however, purchase orders are cancelled within the period of three months before the agreed delivery date and if the items concerned are manufactured by us in series production (fungible items), such cancellation shall be subject to a charge in the amount of 8 % of the total purchase price of the items cancelled. The purchaser shall remain entitled to prove that, after deducting any saved expenditure from the agreed consideration, we are not entitled to any such payment or only to a significantly lesser amount.

11.2. In case of cancellation of purchase orders for custom-made products (single items), we shall have the rights provided in § 649 BGB. According to those provisions, we remain entitled to claim the agreed remuneration. We must, however, offset such expenditure as we save as a result of the cancellation of the contract as well as what we acquire through other use of our labour force or maliciously fail to acquire thereby. Where part supplies or services have not yet been provided by us, we shall be entitled to a fixed sum by way of compensation for our expenditure and loss of profits in the amount of 8 % of the total purchase price of such part supplies or services. The purchaser shall remain entitled to prove that we are not entitled to any payment under § 649 BGB or only to a significantly lesser amount.

12. Set-off, Retention, Assignment

12.1. The purchaser shall be entitled to set off against our claims only if the counterclaim of the purchaser has either been finally adjudicated upon or accepted by us or is undisputed. Furthermore, the purchaser shall be entitled to exercise any right of retention only if and to the extent that such right is based on a counterclaim of the purchaser which arises from the same contractual relationship.

12.2. The purchaser may not without our consent assign or transfer to any third party any rights or obligations arising from the agreements entered into with us.

12.3. Where any assignment made without our consent is legally effective pursuant to § 345a HGB despite such lack of consent, we shall remain entitled to exercise any of our rights to set-off counterclaims even against the purchaser (former creditor).

13. Choice of Law, Place of Jurisdiction

13.1. These TOS as well as any legal relationships between us and the purchaser shall be governed by the laws of the Federal Republic of Germany, to the exclusion of any international or supranational (contract law) conventions or legal systems, including in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG). However, where the choice of law made hereunder in favour of German law is legally inadmissible or ineffective in respect of the reservation of ownership provided in section 10 under the laws of the place where the goods or assets subject to such reservation of ownership are situated, the legal requirements and legal effectiveness of the reservation of ownership shall be governed by the laws of the place where such goods or assets are situated.

If the purchaser is a merchant under the provisions of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the courts of our place of business in Wolfenbüttel/Germany shall have exclusive – and international – jurisdiction over any disputes arising directly or indirectly from the contractual relationship. We may, however, also bring legal action in the courts of the purchaser’s place of general jurisdiction.

Last revised: Jun 2009