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General Terms and Conditions of Sale, Delivery and Payment
We, Schake GmbH, process the orders placed with us by entrepreneurs, legal entities under public law and special funds under public law only on the basis of the terms and conditions set out below. These conditions also apply to all future business with you, our customer.
Our terms and conditions shall also apply if you yourself impose terms and conditions that deviate from ours. These shall only apply if we expressly confirm the deviating conditions to you in writing.
1. offer and conclusion of contract
Our offers are subject to confirmation. The drawings, samples or other documents handed over to you in connection with the offers and/or other declarations within the framework of the preparation of the conclusion of the contract or otherwise transmitted to you shall remain our property and shall be subject solely to our disposal by virtue of our copyright and/or patent law. They may only be made accessible to third parties with our express permission.
The contract is concluded after clarification of all technical and commercial conditions by acceptance of your order through our written order confirmation; this also applies if your order is transmitted by our representatives. If you are supplied from stocks available with us and we do not send you a separate order confirmation for organisational reasons, the invoice shall also be deemed to be the order confirmation.
Only our order confirmation with the description contained therein of the service to be provided by us, which can also be done by reference to catalogues prepared by us, defines the scope of our service obligation as well as the details of the quality of our service.
This shall also apply if the performance owed by us is to be effected according to your specifications, in particular a drawing originating from you. Unless special production specifications are made in the drawing, we may carry out the production within the framework of DIN or ISO or the preliminary standards applicable at the time of commencement of production. In the event that the submission of samples with test reports is agreed, the VDA procedures customary in the industry shall be agreed; only after express written approval of the production by you shall the values present in the samples then be deemed to be the contractual quality of the performance owed by us.
The declarations contained in order confirmations, catalogues and/or other written documents exchanged between us regarding the contractual product as well as operating instructions regarding the quality of the contractual products do not constitute a guarantee within the meaning of Section 276 (1) of the German Civil Code (BGB); unless we have expressly notified you of such in our written order confirmation and have also indicated which success we guarantee.
If the goods are manufactured and delivered in a design specially prescribed by you (according to a drawing, sample or other specific information), you shall guarantee that the design does not infringe the rights of third parties, in particular patents, utility models and other industrial property rights and copyrights. You are obliged to indemnify us against any claims of third parties that may arise from such an infringement.
If we manufacture tools and/or devices required for production according to drawings and/or other design templates provided by you, we shall claim a share in the manufacturing costs (tool cost share), which we shall inform you of in the course of the contract negotiations and invoice after release of the tool. The tool cost shares are due with the release of the outturn sample manufactured with the tool; however, at the latest with the first contractual delivery from this tool.
Notwithstanding your contribution to the costs, we shall remain the owner of the tool which we use solely for deliveries to you; unless you also permit us to use it for other customers upon request in writing.
We undertake to keep the tools for you for three years after the last delivery. If you inform us before the expiry of this period that orders will still be placed by you within a further year, we shall be obliged to store the tools for the period specified by you. Otherwise, we may freely dispose of the tools.
Our prices in offers and order confirmations are in EURO. The list prices valid on the day of delivery plus the respectively valid value added tax are charged ex our works excluding the costs for packaging. The minimum order value is 150,- Euro net. For orders below 150,- Euro, 15,- Euro order costs will be charged. The subsequent reduction of order quantities and/or the reduction of agreed call-offs entitle us to reasonable increases in the agreed unit prices and also any agreed tooling cost shares. Our prices are based on the currently customary calculation factors. If these change permanently in the case of call-off orders, we shall be entitled to adjust the agreed unit prices to these cost changes at our reasonable discretion.
The date of delivery is stated to the best of our knowledge, but without guarantee. Agreed delivery periods begin on the day of our order acceptance and clarification of all commercial and technical details. It refers to the completion in the factory. The deadline shall be deemed to have been met if the parts owed by us leave our works at the agreed time or are made available by us at the supplying works if you are in default of acceptance.
We shall not be in default if delivery is not made or is delayed as a result of circumstances for which we are not responsible. We agree that we are not responsible for events of force majeure, strikes and lockouts, accidents and all other causes which necessitate a partial or complete stoppage of work, such as shortage of materials, shortage of operating materials, transport difficulties, difficulties in the energy supply, operational disruptions of all kinds in our own or in the supplier's business. In all these cases, we are entitled to postpone delivery to you for the duration of the hindrance. In all cases, however, we will inform you immediately of the beginning and the expected end of such hindrances.
If an agreed delivery time is exceeded, you must set us a reasonable grace period of at least 15 working days for delivery, accompanied by a threat of refusal. After the fruitless expiry of this period, you may only assert the right to withdraw from the contract or claim damages for that part of the scope of the contract which is not fulfilled by us. However, you cannot invoke cessation of interest.
In the case of orders on call, the delivery time for the individual call-offs must then be agreed anew in each case.
If significant deterioration of your assets occurs after conclusion of the contract or if such deterioration of assets only becomes known after conclusion of the contract, we shall be entitled to refuse our performance and to demand that you eliminate the risk to the purpose of the contract by providing sufficient security. If you do not comply with the demand for the provision of security within a reasonable period of time set by us, we shall be entitled to withdraw from the contract and/or demand compensation for damages. Articles ordered by you which are not in stock at the time of acceptance of the order and which cannot be delivered on the delivery date stipulated by you shall be retained by us in the order and shall be delivered subsequently as soon as possible. We exclude postage paid subsequent deliveries in the case of partial deliveries.
5. Delivery, dispatch, transfer of risk
The delivery of the ordered goods is ex works.
If you do not specify anything in particular to us, the method of shipment is left to our discretion, without us assuming responsibility for the cheapest shipment.
Mit Verlassen des Werks gehen sämtliche Kosten und Risiken, die mit dem Versand zu tun haben, zu Ihren Lasten. Das trifft auch dann zu, wenn frachtfreie Lieferung vereinbart wurde.
If the goods are ready for dispatch and the dispatch or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to you upon receipt of the notification of readiness for dispatch.
6. terms of payment
Our invoices are payable in 8 days after receipt of invoice with 2% discount, provided that there are no overdue receivables, or within 30 days after date of invoice net without any deduction.
We expressly reserve the right to accept bills of exchange or cheques. They shall only be accepted on account of payment and shall only be deemed to be payment with discharging effect after encashment.
Diskont- und Bankspesen gehen zu Ihren Lasten.
If a bill of exchange or cheque given to us by you is not honoured when due, all claims we have against you shall become due immediately.
If the target is exceeded, we will charge you interest on arrears at a rate of 8 percentage points above the respective base rate.
If we agree to take back delivered goods for reasons for which you are responsible, we shall be entitled to reimbursement of lost profit,
of the costs incurred and a reasonable handling fee of 10% of the sales price of the goods taken back, but at least 20.00 euros.
You may only exercise the right of retention or offset against our claims on the basis of counterclaims that are undisputed or have been established by a court of law.
7. Warranty and liability
With reference to the fact that none of our declarations constitutes a guarantee within the meaning of Section 276 (1) of the German Civil Code (BGB), we assume warranty and liability for our deliveries and services in accordance with the following agreements supplementing the statutory rules:
You are obliged to carefully inspect the products delivered to you by us - even if samples or specimens were previously sent - immediately after their arrival at your premises for completeness and regularity, which also includes the presence of the contractual quality.
The delivery shall be deemed to have been approved if you do not submit a written complaint within two weeks of receipt of the goods. If the defect is not recognisable during a proper inspection, it must be notified to us in writing or by fax no later than 7 days after its discovery.
However, you are required to check the material parameters necessary for the processing you are planning before you process any materials.
You are obliged to notify the forwarder or carrier immediately of any transport damage upon delivery and not to give him a clean receipt in the event of such damage. In this respect, the notification obligations according to the German Freight Forwarders' Standard Terms and Conditions (ADSp) shall apply in addition.
In the event of a justified complaint, we shall be obliged, at our discretion, to remedy the defect by repair or replacement. However, we are also entitled to credit you with the value of rejected parts in the event of a partial complaint. However, you can only demand rectification or replacement if the delivered parts are still in the condition in which they were delivered and the rejected goods are returned to us carriage paid at our request.
We shall bear the costs of remedying the defect insofar as these have not been increased by the fact that the goods delivered by us have been taken by you to a place other than the place of delivery specified by you. If the end user of the goods in the supply chain is a consumer, you are entitled - under the further conditions of § 377 HGB (German Commercial Code) - to recourse in accordance with the statutory provisions of §§ 478, 479 BGB (German Civil Code), but you are only entitled to claims for damages and reimbursement of expenses in accordance with the following provisions on liability.
We shall be liable for all damages - including any claims for reimbursement of expenses - on whatever legal grounds, only in the case of intent; in the case of our own gross negligence, likewise in the case of gross negligence on the part of executive employees or the organs of our company; in the case of culpable injury to the life, body or health of third parties; in the case of defects which we fraudulently conceal or the absence of which we have guaranteed in writing; in the case of defects in our performance, insofar as liability exists under the Product Liability Act for personal injury and property damage to privately used objects.
In the event of culpable breach of material contractual obligations, we shall also be liable in the event of gross negligence on the part of non-executive employees and in the event of slight negligence, in the latter case, however, limited to reasonably foreseeable damage typical for the contract.
It is agreed that if you have carried out or arranged for modification or repair work on the items delivered by us without our prior consent or have procured such work yourself, any warranty and liability on our part shall lapse.
You are also responsible for observing and monitoring compliance with the regulations of the employers' liability insurance association when using the items we supply.
All warranty claims, claims for damages and/or claims for reimbursement of expenses shall become statute-barred 1 year after handover of the contractual items.
8. retention of title
The goods delivered by us remain our property until full payment of all claims arising from the business relationship between you and us. Ownership shall not pass to you until you have repaid the liabilities arising from our deliveries. Payment shall only be deemed to have been made when we have received the equivalent value. You are entitled to resell the reserved goods in the normal course of business; however, you are not permitted to pledge or assign them as security. You are required to secure our rights when reselling the reserved goods on credit, in particular to disclose and impose our reservation of title on your customers.
You must notify us immediately of any enforcement action or any other impairment of our rights.
In addition, you hereby assign to us your claim from the resale of the reserved goods to your customers. We hereby accept this assignment.
At our request, you shall provide us with the information necessary to collect these assigned claims and notify the debtors of this assignment. In the event of cessation of payments, application for or opening of insolvency proceedings or judicial or extrajudicial composition proceedings, your right to resell goods subject to retention of title shall expire.
Any processing or treatment of the goods subject to retention of title shall be carried out by you on our behalf without any obligations arising therefrom for us. In the event of processing, combining, mixing or blending of the reserved goods with other goods not belonging to us, we shall be entitled to the resulting co-ownership share in the new item in the ratio of the value of our reserved goods to the other processed goods at the time of processing, combining, mixing or blending. If you acquire sole ownership of the new item, you shall grant us co-ownership of the new item in proportion to the value of our reserved goods. You will then keep this in safe custody for us free of charge.
If the goods subject to retention of title are resold together with other goods, irrespective of their condition, the advance assignment agreed above shall only apply to the value of the goods subject to retention of title which are the subject of the delivery transaction together with other goods.
If the securities to which we are entitled in accordance with the above provisions exceed the claims to be secured by 25 %, we shall, at your request, release fully paid deliveries at our discretion in individual cases.
9. final remark
The place of performance for all mutual claims is Hagen. The place of jurisdiction shall be Hagen.
agreed. Only German law shall apply to the exclusion of the law on the international sale of movable goods (UN Sales Convention; CISG).
The above terms and conditions shall remain in force even if one or more of them become ineffective.
05/2020, SCHAKE GMBH 58089 HAGEN