general terms and conditions
of Schreier Maschinen- und Apparatebau GmbH
67063 Ludwigshafen am Rhein
Commercial register entry: HRB 1496
Register court: Ludwigshafen am Rhein
§ 1 Scope and conclusion of contract
- Our General Terms and Conditions of Business apply only to companies (§14 BGB).
- They shall also apply to all future transactions with the customer.
- Our General Terms and Conditions of Business apply exclusively.
- We do not recognise any terms and conditions of business or purchase of the contractual partner that contradict these General Terms and Conditions of Business unless we have expressly agreed to their validity in writing.
- Counter-confirmations of the customer with reference to his terms and conditions of business or purchase are hereby rejected.
§ 2 Offer, offer documents
- Our offers are indivisible and, unless limited in time, always subject to change.
- Offers contained in brochures, advertisements, etc. are subject to change and non-binding – also with regard to price quotations.
- We reserve the property rights and copyrights to offer documents, illustrations, descriptions, cost estimates, samples, drawings and other documents. They may not be passed on, published, duplicated or otherwise made available to third parties without our express permission. Upon request, the documents must be returned without retaining any copies.
- If the order is to be qualified as an offer according to §145 BGB, we can accept this within 15 working days.
- Information within the meaning of No. 3 as well as in public statements on our part, by manufacturers and their assistants (§434 (1) No. 3 BGB) shall only become part of the performance specification if the contract expressly refers to it.
- Information in offers and/or order confirmations which are based on an obvious error, namely a clerical or calculation error, does not bind us.
§ 3 Scope of delivery
- Our written order confirmation is decisive for the scope of delivery.
- Amendments, supplements or verbal agreements shall only become valid if they have been confirmed by us in writing.
- We reserve the right to make changes to the technical data and designs in the interest of technical progress.
- Any protective measures that may become necessary due to the customer’s operating conditions must be taken by the customer. They are not included in the scope of delivery. This also applies to cases where installation and commissioning are carried out by us.
- Foundations, energy and supply lines, suction systems, supporting and retaining structures, paintwork are only included in the delivery if this has been agreed in detail.
- Excess or short weights and deliveries within customary commercial limits do not entitle to complaints and price reductions.
§ 4 Processing of sent in parts, repairs Processing of sent in parts, repairs
- The parts intended for processing or repair are to be sent to our works free of charge and, if necessary, in good packaging and accompanied by a delivery bill. In addition, a dispatch note shall be sent to us stating the order number.
- If the submission of a cost estimate is requested before processing or repairs are carried out, this must be expressly stated. The costs of the cost estimate shall be reimbursed if the processing or repair is not ordered.
§ 5 Prices, price changes
- Unless otherwise stated, our prices are “ex works” excluding packaging, freight, postage, transport insurance, unloading, assembly and commissioning.
- The statutory value added tax is not included in our prices. It is shown separately on the invoice and is to be paid by the customer in addition to the purchase price or compensation for work.
- The unloading of the delivery items and the transport from the unloading point to the place of use is the responsibility of the customer.
- In the case of delivery items which have to be officially accepted or calibrated by the authorities, the fees and/or costs incurred for this shall be borne by the customer.
- If there are more than 6 months between the conclusion of the contract and the agreed and/or actual delivery date, the prices of the contractor valid at the time of delivery or provision shall apply. If the latter prices exceed the prices initially agreed by more than 10%, the customer shall be entitled to withdraw from the contract.
§ 6 Payment
- Unless another method of payment has been agreed upon, payments shall be made in Euro, within 14 days of the invoice date, without any deductions, free our payment office.
- Other methods of payment require a special written agreement. The costs incurred by both parties are to be borne by the customer and are due immediately.
- The orderer has a right of set-off or a right of retention only if his counterclaims are legally binding, undisputed or acknowledged by us. Furthermore, he is only entitled to rights of retention if they are based on the same contractual relationship.
- If we become aware of circumstances which call into question the creditworthiness of the customer, in particular if the customer does not honour a cheque or suspends payments, we shall be entitled to make the entire remaining debt due for payment, even if we have accepted cheques. In addition, we are entitled in this case to demand advance payments or the provision of security.
- If the customer finally stops his payments and/or if insolvency proceedings are filed against his assets, we are also entitled to withdraw from the part of the contract not yet fulfilled.
- We shall be entitled, despite any provisions of the customer to the contrary, to set off payments first against his older debts. We shall inform the customer of this type of offsetting. If costs and interest have already been incurred, we shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance.
- If payments are deferred or made later than agreed, the debtor shall pay the usual bank interest for the interim period without the preconditions for default having to be met (in particular, without the need for a reminder). The right to assert further damages caused by default if the conditions for default are met shall remain unaffected.
§ 7 Delivery time
- The delivery period (delivery time or delivery date) begins with the date of the order confirmation. However, this shall only apply if all commercial and technical details have been clarified at this time and the customer has fulfilled all obligations incumbent on him, such as the submission of documents bearing his approval mark, the provision of any official certificates that may be required or the making of an agreed down payment, in good time. If this is not the case, the agreed delivery period shall be extended accordingly.
- The delivery period shall be deemed to have been complied with if the delivery item has left our works by that time or if the customer has been notified of readiness for dispatch or acceptance.
- We shall only be responsible for delays and/or the impossibility of our deliveries and services if we, our legal representatives or vicarious agents have caused the impediment to performance intentionally or through gross negligence.
- Events or hindrances which are due to force majeure, which make it considerably more difficult for us to fulfill our contractual obligations or which make it temporarily or permanently, completely or partially impossible for us to fulfill our contractual obligations, regardless of whether they occur or are present at our company or at our suppliers, entitle us to postpone the delivery for the duration of the hindrance, to restrict it or to withdraw from the contract with regard to the unfulfilled part. In this respect, the customer is not entitled to any claims for damages. Any liability on our part is excluded.
- The aforementioned events or obstacles include in particular industrial action, riots, official measures, war, natural disasters, disruption of transport routes, terror, supply crises, etc. Compliance with the delivery period is therefore subject to correct and timely delivery on our part.
- If dispatch or acceptance of the delivery items is delayed for reasons for which the customer is responsible, he will be charged the costs incurred as a result, beginning one month after notification of readiness for dispatch or acceptance.
- Furthermore, in such cases we shall be entitled to invoice the customer upon notification of readiness for dispatch or acceptance.
- The duration of a period of grace to be set by the customer in the event of a delay in performance in accordance with the statutory provisions shall be fixed at a minimum of two weeks, which shall commence upon receipt of the setting of the period of grace by us.
§ 8 Shipping and transfer of risk
- The risk shall pass to the customer as soon as the delivery item has been handed over to the person carrying out the transport or has left our factory for the purpose of shipment. If dispatch is delayed or not carried out at the instigation of the customer, the risk shall pass to the customer upon notification of readiness for dispatch.
- At the request of the customer, deliveries will be insured in his name and at his expense.
§ 9 Warranty
For material defects and defects of title of the delivery, we provide the following warranty, excluding further claims, subject to the provisions of § 10 and 11:
- For material defects and defects of title of the delivery, we provide the following warranty, excluding further claims, subject to the provisions of § 10 and 11:
- If the service provided by us or the object of delivery is defective as a result of a circumstance that occurred before the transfer of risk or if the service or the object of delivery does not have a characteristic that we have guaranteed within the framework of a quality or durability guarantee or if damage occurs within the warranty period due to manufacturing or material defects, we may, at our discretion and to the exclusion of any other warranty claims of the customer, remedy the defect (repair) or deliver an object that is free of defects or corresponds to the quality and durability guarantee (replacement delivery). If the subsequent performance fails, the customer may, at his discretion, demand a reduction in price (abatement) or withdraw from the contract. Subsequent performance shall be deemed to have failed after the third unsuccessful attempt.
- In the case of newly manufactured goods, the warranty obligation shall commence upon delivery. If delivery is delayed for reasons for which the customer is responsible, the warranty obligation shall commence upon notification of readiness for dispatch. For used goods, warranty is excluded, unless the seller has fraudulently concealed the defect or has given a guarantee for the quality of the goods. The warranty periods are periods of limitation and also apply to claims for compensation for consequential damage caused by a defect, unless claims in tort are asserted.
- Obvious defects in work performances can no longer be claimed after acceptance. Otherwise, in order to preserve warranty claims of the customer, such defects must be reported to us in writing without delay, but at the latest within two weeks after delivery. The defective goods must be kept ready for inspection by us in the condition in which they were at the time of the discovery of the defect.
- Insignificant, reasonable deviations in the dimensions and design – especially in the case of repeat orders – do not entitle to complaints unless absolute compliance has been expressly agreed. Technical improvements as well as necessary technical modifications shall also be deemed to be in accordance with the contract, provided that they do not represent a deterioration of the fitness for use.
- Wearing parts are not subject to warranty.
- If operating or maintenance instructions are not followed, changes are made to the products, parts are replaced or consumables are used which do not comply with the original specifications, any warranty shall lapse if the customer does not refute a correspondingly substantiated claim that only one of these circumstances caused the defect. This shall also apply in cases of faulty assembly or commissioning by the customer or third parties, faulty or negligent handling, unsuitable or improper use, improper maintenance, use of unsuitable operating materials, defective construction work, unsuitable building ground and chemical, electrochemical or electrical influences, provided that the Supplier is not responsible for these circumstances.
- The orderer must give us the necessary time and opportunity to carry out all improvements and replacement deliveries that appear necessary after notification. Otherwise, we shall be released from liability for the consequences arising therefrom.
- Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case we must be notified immediately, does the customer have the right to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary expenses from us.
- If the customer or a third party carries out improper repairs, we shall not be liable for the consequences.
- If we are available to the customer beyond our legal obligations to provide information regarding the use of our product, we shall only be liable, taking into account the restrictions of § 11, if a special fee has been agreed for this.Special provisions for defects of title:
- If the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, we shall, at our own expense, in principle procure the right of further use for the customer or modify the delivery item in such a way that the infringement of property rights no longer exists. If this is not possible at economically reasonable conditions or within a reasonable period of time, both the customer and we shall be entitled to withdraw from the contract.
- The obligations on our part as set out in § 9 No. 11 are, subject to § 11, final in the event of an infringement of industrial property rights or copyrights. They shall only exist if the customer informs us without delay of asserted infringements of industrial property rights and copyrights, supports us to a reasonable extent in defending the asserted claims or enables us to carry out the modification measures in accordance with § 9 No. 11, all defensive measures including out-of-court settlements are reserved to us, the defect of title is not based on an instruction of the customer or the infringement of rights was not caused by the fact that the customer has modified the delivery item without authorization or used it in a manner not in accordance with the contract.
§ 10 Limitation period
The warranty claims of the customer for new goods and for work performance shall become statute-barred one year after delivery of the goods or acceptance of the work performance. If the delivery is delayed for reasons for which the customer is responsible, the notification of readiness for dispatch shall replace the delivery or acceptance. This shall not apply in the cases of §438 (1) No. 2 BGB and §634 (1) No. 2 BGB. These regulations remain unaffected. The claims of the customer arising from the Product Liability Act (ProdHaftG) shall also remain unaffected. Furthermore, the provision in these General Terms and Conditions of Business according to which any warranty is excluded for the delivery of used goods shall remain unaffected.
Notwithstanding the above provision, the statutory limitation periods for claims for damages arising from liability for loss of life, bodily injury or damage to health based on a negligent breach of duty by us or an intentional or negligent breach of duty by a legal representative or vicarious agent of ours shall apply. Furthermore, the statutory limitation period for claims for damages from the liability for other damages, which are based on a grossly negligent breach of duty by us or on an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of ours, shall apply.
§ 11 Limitation of liability
Claims for damages of any kind are excluded both against us and against our organs, employees, vicarious agents and assistants, unless the damage was caused by us, our legal representatives or our vicarious agents intentionally or through gross negligence. This limitation of liability does not apply
- for claims for damages arising from a guarantee of quality (warranty of characteristics), which is intended to protect the customer against the risk of consequential damage caused by defects;
- for liability for damages resulting from injury to life, body or health due to a negligent or intentional breach of duty by us, a legal representative of us or a vicarious agent of us;
- for claims for damages according to the law on liability for defective products (ProdHaftG);
- for claims for damages due to a culpable violation of essential contractual obligations, insofar as this violation endangers the achievement of the purpose of the contract, whereby in this case, in the case of simple negligence, liability shall only be assumed for reasonably foreseeable damage typical for the contract.
§ 12 Retention of title
- The title to the delivered items shall remain reserved until all our claims against the customer arising from the business relationship, and against the companies affiliated with him within the meaning of §§ 15 ff. Aktiengesetz, including future claims from contracts concluded at the same time or later, have been settled.
- The customer is obliged to notify us immediately in writing of any seizure of the reserved objects and to inform the pledgees of the reservation of title. The orderer is not entitled to sell, give away, pledge or assign by way of security the items delivered to him under retention of title – except in the cases of the following clauses. The orderer is prohibited from making agreements with his customers which could impair our rights.
- If the delivery is made for a business operation maintained by the customer, the items may be resold within the scope of proper business management. In this case, the customer’s claims against the purchaser arising from the sale are hereby assigned to us. If the items are resold on credit, the orderer must reserve the right of ownership against his customer. The customer hereby assigns to us the rights and claims arising from this reservation of title against his customer.
- Any treatment or processing of the reserved objects by the customer shall be carried out by the customer free of charge on our behalf. 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 object in the ratio of the factor value of the reserved goods to the other processed goods at the time of processing, combining, mixing or blending. If the customer acquires sole ownership of a new item, the contractual partners agree that he shall grant us co-ownership of the new item in the ratio of the factor value of the processed or connected, mixed or blended reserved goods and shall keep this in safe custody for us free of charge. If the reserved goods are resold together with other goods, whether without or after processing, connection, mixing or blending, the advance assignment agreed above in clause 4 shall only apply in the amount of the factor value of the reserved goods which have been resold together with the other goods.
- If reserved goods are installed as essential components in the real estate of a third party by the customer or on his behalf, the customer hereby assigns to us any claims for remuneration with all ancillary rights, including the granting of a security mortgage, which may arise against the third party or the party concerned.
- If objects subject to reservation of title are installed as essential components in the real property of the orderer, the orderer hereby assigns to us the claims arising from a sale of the real property or of rights to the real property with all ancillary rights.
- If the value of the securities existing for us according to the above provisions exceeds the value of our claims – not only temporarily – by a total of more than 20%, we shall be obliged to release securities accordingly at the request of the customer. The selection of the securities to be released shall be at our discretion.
- If the orderer does not fulfil his obligations to us or does not do so punctually and/or if he acts in an inadmissible manner on the items delivered under reservation of title, we can demand the return of the reserved items, without prejudice to his claim to fulfilment of the contract, if a reasonable period of time set for the orderer to fulfil his obligations has elapsed without success. We shall also be entitled to this right without first withdrawing from the contract. If the customer has fulfilled the contract, we shall return the items.
§ 13 Securities
- We shall be entitled at any time, even after the conclusion of the contract, to demand sufficient security for our claims, including those not yet due, and to make further advance payments on our part dependent on this. This shall apply in particular if doubts arise as to the creditworthiness of the customer, shortfalls or liquidity gaps etc. or if the original credit volume increases.
- We undertake to release the given securities at the request of the buyer to the extent that the realizable value of these securities exceeds the claim to be secured by more than 20%. The selection of the securities to be released is at our discretion.
§ 14 Export and Import Licenses
Items and technical know-how supplied by us are intended for use and to remain in the Federal Republic of Germany. The export/re-export of hardware and software delivered on the basis of these terms and conditions of business – individually or in system-integrated form – and the associated documents may, for example, be subject to the obligation to obtain a permit and other foreign trade control regulations under German or foreign law due to their nature or intended use.
The customer must inform himself about these regulations independently. Irrespective of whether the customer states the final destination of the items delivered, it shall be the customer’s own responsibility to obtain any necessary permits and licenses from the relevant foreign trade authority before exporting such products.
§ 15 Transferability
We are entitled to transfer our rights and obligations at any time to third parties who, like us, are suitable for performance. In this case, the buyer is granted the right to withdraw from the contract.
§ 16 Privacy
- We are entitled to store personal data arising in the course of the business relationship and to process and use it in accordance with the statutory provisions.
- The customer agrees to the transfer of his data required for credit insurance to the credit insurer.
§ 17 Place of performance
Place of performance for both parties is Ludwigshafen am Rhein.
§ 18 Place of jurisdiction
- Insofar as the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, our registered office shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
- However, we reserve the right to take legal action where the customer has a legal venue.
§ 19 Applicable law
The contractual relationship between us and the customer shall be governed by the law of the Federal Republic of Germany to the exclusion of German international private law and to the exclusion of all bilateral and/or multilateral agreements concerning the purchase of movable goods, in particular to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
§ 20 General information
- The rights of the customer under this contract are not transferable.
- Should a provision in these terms and conditions be or become invalid, the validity of all other provisions and agreements between us and the customer shall not be affected.