General Terms of Service for business customers
General Terms of Service for business customers (B2B) as of March 2012
§ 1 Scope
The following General Terms of Service ('GTS') apply exclusively. Customers' terms of service stating otherwise shall not be accepted unless their validity is expressly agreed to in writing.
Where agents or representatives of Schmierling GmbH make special arrangements deviating from these terms of service, these shall only be binding if Schmierling GmbH agrees to them in writing.
The customer within the meaning of these terms of service shall be the business in accordance with § 14 BGB [German Civil Code].
Agreements between Schmierling GmbH and the customer will be made in writing by way of accepting offers (‘commercial letter of confirmation’). Regardless of the form of contract conclusion, the customer shall accept that the following terms of service are part of the contract.
§ 2 Offers
Offers made by Schmierling GmbH are subject to change unless they are expressly designated as binding or this is to be inferred from the circumstances. Documents associated with the offers such as illustrations, drawings, weight and dimensions are approximate and non-binding unless they are expressly designated as binding.
Schmierling GmbH reserves all ownership rights and copyrights in their offer documents; the offer documents may – unless they are generally available brochures and product information – not be made available to third parties or used in any other way without permission from Schmierling GmbH.
In the case of reasonable doubts about the creditworthiness of the customer, Schmierling GmbH shall be entitled to refuse execution of the contract towards the customer. This also applies in terms of new offers where invoices are not settled despite reminders being sent to the customer.
§ 3 Prices and payment conditions
The prices quoted are net figures. The prices are subject to change; where the cost situation changes, particularly where there are fluctuations in materials prices and currency, Schmierling GmbH reserves the right to change prices. The price quoted in the actual offer shall apply. Offers may be valid for a limited time only. The customer may not rely on previous or subsequent offers.
Unless the order confirmation states otherwise, the net purchase price (without
deductions) is due immediately. The deduction of discounts requires special written agreement.
The customer is obliged to pay the purchase price within 14 days after receipt of invoice to the bank account of Schmierling GmbH, unless a different payment date or advance payment has been agreed in writing. If the customer is in default, they are obliged to pay interest at the rate of 10% above the base interest rate on the outstanding receivables in addition to this amount to Schmierling GmbH. The Parties may conclude a separate contract to make a different arrangement.
Cash or cheques are accepted only on account of performance and shall only be recognised as payment once cashed and after all additional costs have been paid. Schmierling GmbH reserves the right to refuse payment using cash or cheques.
Right to refuse service or retention by the customer are excluded, unless the claim on which the right of refusal is based is legal, undisputed or recognised by Schmierling GmbH in writing.
Set-off by the customer is excluded unless the counter claim is legal, undisputed or recognised by Schmierling GmbH in writing.
§ 4 Delivery
Compliance with agreed delivery dates requires the timely and proper fulfilment of all the customer's obligations. Should non-compliance with a delivery date be due to force majeure, for example labour disputes such as strikes and lockouts in particular, or other circumstances outside of the control of Schmierling GmbH, such as operational disturbances, difficulties in materials procurement or logistical delays, the delivery date shall be extended to take into account the delay caused by these events – regardless of whether the obstructions occur at Schmierling GmbH or their subcontractors. Schmierling GmbH reserves the right to withdraw from the contract in such cases. The customer shall not be entitled to damages in either case. Claims for late payment or reimbursement of any lost profits in particular are excluded.
The delivery date shall be deemed as met if the goods are dispatched or are ready to ship before it ends and this is communicated to the customer.
For delivery of EU-palletized goods the seller will charge € 8.00 per pallet, if no reusable pallet is provided. Upon payment of the cost, the palette becomes the property of the purchaser.
§ 5 Transfer of risk
Unless otherwise agreed in writing, the risk of accidental loss and accidental deterioration of the goods is transferred to the customer upon delivery, or upon the goods leaving the Schmierling GmbH or their subcontractors' warehouse or premises in the case of sales involving the carriage of goods.
Delivery is also deemed to be effected if the customer delays acceptance. Should shipping be delayed as a consequence of circumstances the customer is responsible for, the risk shall be transferred to them on the day of dispatch readiness.
§ 6 Retention of title
Deliveries take place exclusively under retention of title, i.e. until the complete fulfilment of the payment of the purchase price, the delivery item remains the property of Schmierling GmbH. § 1006 BGB does not apply in this respect.
Resale of the goods subject to retention of title may only take place in the ordinary course of business. With the resale of the retained goods, the customer shall assign claims arising from the resale against the purchaser to Schmierling GmbH. Schmierling GmbH shall accept the assignment (extended retention of title). The customer is however entitled to collect the receivables from the resale, unless the customer is in default of payment with Schmierling GmbH. Where receivables of Schmierling GmbH are due from the customer, the latter shall be obliged to pay the sums collected from their customers to Schmierling GmbH immediately.
The customer is only entitled to assign the receivables with the consent of Schmierling GmbH. Schmierling GmbH will not refuse consent where the customer has a legitimate interest in the assignment and it is not contrary to the interests of Schmierling GmbH.
In the case of breach of contract by the customer, in particular default of payment or a failed enforcement measure due to inability to pay, Schmierling GmbH shall be entitled to withdraw from the contract after sending reminders and setting a payment deadline of 10 working days, and to demand the return of the goods still the property of Schmierling GmbH due to the retention of title. Schmierling GmbH further reserves the right to claim for damages against the customer.
The customer hereby agrees that the persons commissioned by Schmierling GmbH to collect items may enter the premises where the goods are stored, on foot and by vehicle, for the purposes of distribution.
The customer may neither pledge nor transfer the goods to secure them. In the case of pledges or other disposal methods by third parties, the customer must immediately inform Schmierling GmbH.
Schmierling GmbH will release the securities due to them on request by the customer to the extent that their realisable value exceeds the receivables – where these have not yet been settled – by more than 20%.
§ 7 Defects
Schmierling GmbH warrants for material and legal defects of the goods at their own discretion by subsequent fulfilment in the form of repair or a replacement. Should the repair/replacement fail, the customer is entitled to demand an appropriate reduction in the purchase price (abatement) or to declare their withdrawal from the sales contract, at their discretion. In the case of minor defects, the customer shall have no right of withdrawal. Where the customer claims additional or exclusive damages as part of defect remedy, the limitations pursuant to § 8 below shall apply in this respect.
Schmierling GmbH assumes no liability for damages arising due to improper use, the use of unsuitable equipment or as a result of natural wear and tear. The same applies to damages not resulting from a manufacturing defect on the part of Schmierling GmbH or their subcontractors.
The warranty period is one year from delivery of goods, unless longer legal periods of limitation are mandatory.
Schmierling GmbH gives no guarantees in the legal sense, except where these are expressly agreed in writing in each individual case.
§ 8 Liability
The following provisions concern contractual claims of the customer, in particular, but not exclusively, in the context of removal of defects, delay and impossibility, as well as legal, in particular pre-contractual and tort legal claims.
Schmierling GmbH shall have unlimited liability in the case of intent and where the health, body or lives of people have been injured due to breaches of duty by Schmierling GmbH. Furthermore, Schmierling GmbH shall have unlimited liability for claims under the Product Liability Act.
In the case of grossly negligent breaches of duty and the breach of fundamental contractual obligations (so-called ‘cardinal breach of duty’), the liability of Schmierling GmbH shall be limited to three times the contract price and with the restriction that the liability is limited to foreseeable, typically occurring damages.
In the case of consequential or incidental damages, in particular damages not incurred to the delivery itself, of lost profits, loss of production, loss of use, consultant fees etc., Schmierling GmbH shall only be liable for cardinal breach of duty caused by gross negligence, and then only up to the amount of three times the contract price and the foreseeable, typically occurring damages.
In all other cases, the liability of Schmierling GmbH is excluded.
§ 9 Disposal
In order to meet their legal obligations in relation to packaging regulations, Schmierling GmbH shall conclude a license agreement with a comprehensive collection and disposal system of their choice, e.g. Dual System Germany, for the return of packaging materials. Schmierling GmbH incurs the license fee and bills it separately to the customer.
Where goods are subject to the Waste Electrical and Electronic Equipment Act, the manufacturer assumes the obligation to properly dispose of the goods supplied after termination of use at their own cost in accordance with the statutory provisions.
§ 10 Data protection
Where necessary for business transactions, order-related customer data are collected, digitally stored, processed statistically and transferred internally and to Schmierling GmbH subcontractors, to which the customer agrees when placing the order. Customer data are only collected, stored and used in connection with the sale of the goods. The customer agrees that their data may also be used for the purpose of sending information about products and services of Schmierling GmbH. In the case of disagreement, the customer may revoke their consent in writing from Schmierling GmbH at any time.
§ 11 Place of jurisdiction – place of fulfilment
The place of jurisdiction for all disputes arising from the business relationship is Pulheim/Germany.
The place of fulfilment is – unless otherwise agreed – Pulheim/Germany.
The law of the Federal Republic of Germany applies. The provisions of the CISG do not apply.
§ 12 Final provisions
The current version of the general terms of service applies.
Amendments and supplements to the contract as well as additional agreements must be made in writing.
If any provision of the contract or the terms and conditions is or becomes invalid or incomplete, the remaining contents of the contract shall remain unaffected by this.