§ 1 Generic Conditions
Sales, deliveries, activities and offers of Schuhmacher GmbH with companies (§14 BGB) and corporate bodies shall be governed exclusively by these General Conditions of Sale.
The General Conditions of Sale are valid as general agreement for future sale and/or delivery contracts. There is no need to advise of the general conditions of Sale in every single business contract. If there will be changes to the General Conditions of Sale, we will advise our customers accordingly.
Deviating business and/or payment conditions of the buyer shall only be valid Schuhmacher GMBH recognizes the deviating conditions in written form. The conditions in this document shall also apply if Schuhmacher GMBH is aware that the conditions of the buyer contradict or deviate from these conditions of sale and delivers the order to the buyer without objection.
Special conditions with the buyer agreed on individual case (including additional agreements and agreement changes) shall always have priority to the General Conditions of Sale. For such special conditions a written contract and/or our written confirmation is needed.
Released declarations and adverts of buyer after contract (e.g. deadlines, notice of defects, declaration of cancellation or decrease) needs to be in written format.
§ 2 Quotes and conclusion of contracts
Our quotes are subject to change without notice and not binding. This is also true for any publications and technical documentations (e.g. drawings, plans, calculations, reference to DIN norms), product descriptions or other papers (and electronic formats) handed over to customers.
We reserve us technical changes of our efforts, as long as changes are conform with technical progress or if changes cannot be avoided and as long changes are reasonable.
The order of goods through the buyer is a binding offer of contract. We are allowed to accept this offer of contract within 14 days after reception.
The notice of acceptance through Schuhmacher GMBH can only be done in written format (e.g. written order confirmation).
Without explicit agreement variation of measure, weight and quality in terms of DIN for steel and iron are acceptable. Should design specific gravity be standard, we need to invoice the regular overhead for rolling tolerance.
Employees of Schuhmacher GMBH are not authorized to give verbal side-agreements which go above the written contract.
§ 3 Prices
Our prices are daily updated, the quoted price is only valid on the day of reception. Schuhmacher GMBH will inform customers about price changes of concrete quotes immediately.
Magisterial are the prices plus VAT at the point of contract conclusion. The prices are prices from Philippsburg, if no other agreements are taken.
Cost of transport from warehouse and the cost of transport insurance when indicated, will be covered by the buyer.
Possible tolls, fees, taxes and other public charges are subject to the buyer. We are not taking back any transport and other packaging according to the regulation of packaging, besides pallets.
§ 4 Terms of delivery and delay of delivery
Date of delivery or term of delivery will be handled individually and will be binding with the written confirmation of Schuhmacher GMBH.
We will inform the buyer immediately if we cannot stick to the term of delivery because of any reasons which are out of our control (goods and services are not available). We will also provide a new, estimated term of delivery. We can withdraw partly or in total of a contract if the goods and services are still not available within the new term of delivery. If there is already a consideration of the buyer, it will be promptly refunded. Situations where goods and services are not available: especially when we do not receive the goods/services in-time from our supplier, when we have made a congruent hedging, when it is not our nor our suppliers fault or if we in specific situations not obligated to supply the goods/services.
Dissent to the legal regulations, we do enter into delay after written reminder of the customer. If we get into delivery delay, the customer can ask for flat refund for his damage of delay. The flat damage fee is calculated with 0, 5 % of the list price (delivery value) for every completed calendar week, in total not more than 5% of delivery value of the delayed goods/services. We are allowed to proof if the customer has damage, or less damage as mentioned flat fee.
Customer rights according to those written conditions and our legal rights according to exclusion of statutory duty to indemnify (because of impossibility or unreasonable making of delivery) may be unaffected.
§ 5 Delivery, transfer of perils, default of acceptance
Delivery occurs from stock (Philippsburg) or supplier, as it is place of execution. If customer requests delivery of goods to another place cost is up to the customer. If there is not special agreement, we are authorized to determine kind of shipment (especially transportation company, transportation way, packaging). Regarding the shipment costs please refer to §3 of our terms and conditions.
Schuhmacher GMBH is authorized to deliver partly anytime.
The danger of casual destruction and the casual aggravation of the goods will change over to the customer latest with the commissioning to the customer. If goods are transported the danger of casual destruction and the casual aggravation of the goods will change over to the carrier with the dispatch to the carrier.
The commissioning equals, if the customer is in default of acceptance.
If the customer gets into default of acceptance, or if he is for any other reasons responsible for delivery delay, Schuhmacher GMBH is authorized to request compensation of damage, including additional expenses like storage cost. Here for we calculate flat 0,5% of the list price (delivery value) per calendar week, in total not more than 5% of delivery value, starting with the term of delivery or – if no term of delivery has been specified – with the note of the goods being ready for dispatch.
The proof of higher damage as well as our legal claims (especially compensation of additional expenses, appropriate compensation, and cancellation) will stay unaffected. The flat fee will be credited in case of further compensation. The customer may proof that we did not had damage or less damage.
§ 6 Payment conditions
If there is no special agreement between us and the customer, the payment is due within 30 days, starting with the invoicing and delivery of the goods.
With the end of the payment deadline, the customer gets into default of payment. The purchasing price needs to be paid with interest during the default of payment according to the legal default interest. Schuhmacher GMBH reserves the right to bring additional damage resulting out of the default of payment to bear. Obverse merchants our right of commercial interest will stay unaffected. (§353 HGB)
Schuhmacher GmbH is authorized to deduct payments on older debits, even if regulations of the buyer say it different. Schuhmacher GmbH will inform the customer how the deduction will take place.
If costs and interests already took place, Schuhmacher GmbH is authorized to deducts payments first on costs, interests and finally on the main debit.
The buyer has the right of payment deductions, if his claim is legally proofed and beyond dispute. In terms of defects in delivery the customer rights stay unaffected.
If it gets obvious after contract conclusion , that our right to get the purchasing price is endangered due to the customers payment ability (e.g. dedication of bankruptcy), we are authorized according to legal regulations to not fulfil the contract or even rescission (§321 BGB). If the contract is about custom-made items we are authorized to cancel the contract immediately, without setting a deadline.
§ 7 Reservation of title
Until all open payments are completed we do reserve property on all sold goods and services.
All goods under our reservation of title cannot bonded to third parties or given as security. The buyer has to inform us in written format, as soon third parties get access to goods which are still under our reservation of title.
If a costumer behaves contrary to the contract, especially if the purchasing prices are not paid, we are authorized according to legal legislations to cancel he contract and to request the goods to get re-transferred. If the buyer does not pay the goods, we need to set an adequate deadline for payment before we request to get the goods re-transferred.
The buyer is authorized to sell and/or to process goods/services which are under reservation of title. In that case the following regulations take place.
The reservation of title is extended to the products resulting out of our goods being processed, mixed and/or connected to its full value, we count as producer. Due to processing, mixing and/or connecting with third party goods there might be a third party reservation of title. In that case we do get co-ownership in the proportion of the value of the processed, mixed and/or connected goods.
For the developed goods the same regulations are true as for goods delivered under reservation of title.
The customer will transfer the debit claims against third parties to us in total or in the height of the co-ownership take for guaranty. We do accept the transfer. The mentioned buyer obligations in passage 2 are still valid.
The customer will be allowed to collect debit claims next to us. We commit to not collect the debit claim, as long the buyer will cover his duties of payment against us, as long he will not get into delay of payment, as long he does not start dedication of bankruptcy or any other lack of capacity comes up. If this is the case, we are authorized to get information about the debit claims and the name of the obligor, as well as all needed information for the collection of the debit claim. The buyer is also responsible to inform the obligor (third party) about the transfer of the debit claim.
Is the value of guarantees 10% higher as our debit claims, we will release guarantees according to our choice.
§ 8 Liability for defects
Deviant from §438 section 1 No. 3 BGB is the period of limitation for claims of material defects and defects of title one year starting with delivery. If there is abatement agreed on, the limitation period starts with abatement.
Are the goods used, according to their regular usage for a building, and it has caused imperfection, the period of limitation is according to legal regulation 5 years starting with delivery (§438 section 1 No. 2 BGB). Special regulations for action in rem of third parties stay unaffected (§438 section 1 No. 1 BGB), bad faith of the seller (§438 section 3 BGB) and for rights of provider redress of final delivery to end user (§479 BGB).
The mentioned periods of limitations are also valid for contractual and non-contractual claims for damages of the customer, which are caused through a defect of the goods. Exception would be if the regular legal period of limitation (§§195, 199 BGB) would be shorter. Otherwise for claim of damages of the customer (§9), the regular legal periods of limitations are valid.
For the rights of the buyer for material defects and defects of title (including wrong delivery and short delivery) the legal regulations are valid, if nothing else is mentioned below.
For public notes of the producer or other third parties (e.g. marketing messages) we do not take accountability.
The defect claim of a customer is only valid, if he comes along with his legal research and complain obligation (§§377, 381 HGB). If there is a defect shown during research or later, this needs to be communicated to us immediately in written format. Immediately means that we receive the written notice within 2 weeks; to keep this deadline the in-time posting is sufficient. Despite those defects found through research, the customer needs to inform us within 2 weeks from delivery on in written format about obvious defects, also to keep this deadline the in-time posting is sufficient. Does the customer miss this deadline; our liability of the found defects is excluded.
Are the delivered goods defect, the seller could offer amendment or subsequent delivery, if this is not unacceptable for the buyer.
We are authorized to depend the amendment or subsequent delivery on the payment of the customer. The buyer is authorized to reserve part of the selling price in proportion to the defect. The buyer has to admit us sufficient time and possibility for supplementary performance, especially to send the goods to inspection. If we deliver supplementary goods, the buyer needs to send back the defect goods according to legal legislations. Supplementary performance does not include the demounting of defect goods nor the afresh installation, if we were not originally in charge of installation.
In case of defect goods we will cover costs in order to proof and supplement, especially cost for transportation, material, working time, but not installation and de-installation. If we prove that goods are not defect, we are authorized to ask the buyer to take over those costs.
Only in urgent cases, e.g. endangerment of industrial safety or to avoid disproportional damage, the buyer is authorized to eliminate the defect on his own and ask us for coverage of the cost for elimination. In this case we ask for immediate notification, if possible prior the action is taken place. The buyer is not authorized to do this, if we would have been authorized to refuse supplementary performance according to legal legislation.
If supplementary performance is not successfully or cannot happen within the appropriate timeline set by the buyer, the buyer is authorized to cancel the contract or to reduce the purchase price. If there is an insignificant defect, there is no right of withdrawal.
If the goods are declared as outclass, e.g. as IIa material or random sheet, the buyer has no right of warranty for defects that might occur typically.
Right of compensation is only valid according to these terms and conditions and otherwise excluded.
§ 9 Other Accountability
We will be liable according to legal legislations in case of contractual and non-contractual violation, if there is nothing different mentioned in these terms and conditions.
We are liable for compensation in case of intentional or gross carelessness. In term of carelessness we are only liable
For damages of bodies or health
For damages resulting out of an essential contractual obligation (obligation which makes the contract overall possible and compliance the customer can count on); in this case the liability is typically narrowed to the height of the damage
The liability limitation out of No. 2 are invalid, if the defect is malicious concealed or if we took guaranty for the character of the goods. The same is true for rights of the buyer according to Product Liability Act. A buyer is not authorized to cancel the contract if it is only a neglect of duty but not a defect. A general right for the customer to cancel the contract (especially §§ 651, 649 BGB) is excluded. For the rest all legal legislations and consequences are valid.
§ 10 Choice of law and place of jurisdiction
For these terms and conditions and all legal relationships between us and the buyer is under the law of the federal republic of Germany to the exclusion of international law, especially the UN buying law. Preconditions and actions regarding the retention of title according to §7 are under the law of the storage location of the goods, as appropriate the chosen law in favour of the German law is not applicable or ineffective.
If the buyer is merchant according to the code of commerce, artificial person of public law or subject to public law special asset, Philippsburg is exclusively – also international – place of jurisdiction for all conflicts resulting directly and in-directly out of contractual relationships. We are also authorized to bring suit to the buyer at his general place of jurisdiction.
§ 11 Severability clause
Should a designation in these terms and conditions or a designation within other agreements be ineffective, the affectivity all other designations or agreements will stay unaffected.
§ 12 Alternative dispute resolution
Alternative dispute resolution pursuant to Art. 14 para. 1 ODR-VO and § 36 VSBG:
The European Commission provides a platform for on-line dispute settlement (OS), which is available at http://ec.europa.eu/consumers/odr/.
The supplier is not obligated or willing to participate in a dispute resolution procedure.