All deliveries and services will continue to be based solely on these general delivery conditions, even in individual cases in which the seller, Schlenker, does not explicitly refer to them. The validity thereof can only be partially or wholly excluded by a written agreement for the individual business transaction. General terms and conditions, particularly the purchase conditions of the buyer, do not apply to the deliveries and services of the seller. They also do not bind the seller if he does not specifically contradict them in individual cases; the seller hereby contradicts them. These general terms and conditions of delivery of the seller shall be deemed as accepted no later than upon the receipt of the delivered goods or services.
These general terms of delivery apply only to companies as defined by § 14, 310 (1) of the German Civil Code (BGB) and to legal entities under public law or a special fund under public law.
§ 1 Conclusion of Contract
1.1 A contract is concluded with the written confirmation of order by the seller. The written form of the order confirmation is also fulfilled in text form by means of remote data transmission (e.g. email) or fax.
1.2 If customary clauses are agreed, the latest version of the Incoterms’ interpretation rules apply unless otherwise specified below.
1.3 Documents, such as drawings as well as information regarding dimensions and performance, are only approximate unless they are expressly designated as binding.
1.4 The seller reserves the right to property and copyrights of files, samples, sketches, cost estimates, drawings, etc., information of a physical and non-physical nature – also in electronic form. This information may not be reproduced or made accessible to third parties without the consent of the seller, regardless of form. The seller will only make documents designated by the buyer as confidential accessible to third parties with the buyer’s consent.
§ 2 Price and Payment
2.1 The prices are being calculated in Euros and apply without a separate agreement ex works of the seller, including loading in the factory, but excluding packaging and unloading. VAT is added to the prices in the legally applicable amount.
2.2 Unless otherwise stated in the order confirmation, payments are due net (without deduction) within 14 days of the invoice date. The statutory regulations on late payments apply.
2.3 Surcharges and subsequent calculations to the agreed payment are permitted if circumstances such as material costs, increases in wages or energy costs, increases in public charges, etc. force the seller to do so and the delivery or service is to take place later than 4 months after the conclusion of the contract. In the case of other price increases, the buyer has a right of withdrawal regarding the contract in the event that the list price has increased significantly more than the general cost of living. Deliveries for subsequent orders that occur after a price change are calculated at new prices without the buyer having a right of withdrawal.
2.4 The buyer is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by the seller. He is authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 3 Delivery Time, Delivery Delay
3.1 The delivery time is agreed between the parties. The commencement and adherence to the delivery time by the seller assumes that all commercial and technical questions have been resolved and an agreement has been reached and that the buyer has fulfilled all of his obligations, such as providing the required official certificates, approvals, or making a down payment. If this is not the case, the delivery time will be extended accordingly. Compliance with the delivery schedule is always subject to correct and timely delivery. The above does not apply if the seller is responsible for the delay.
3.2 The delivery time is considered to be complied with if the delivery item has left the seller’s works by the delivery period deadline or the seller has reported readiness for dispatch to the buyer. Insofar as acceptance is to be carried out contractually, the contractually agreed acceptance date or the notification of readiness for acceptance is decisive, except for in the case of justified refusal to accept.
3.3 If the delivery or the acceptance of the delivery item is delayed for reasons for which the buyer is responsible or if he culpably violates other duties to cooperate, the seller is entitled to demand compensation for the resulting damage, including any additional expenses. Without prejudice to further claims, the seller may otherwise dispose of the delivery item after fruitless expiry of a reasonable grace period set by him, store it in particular at the risk and expense of the buyer and/or deliver to the buyer with an appropriately extended period.
3.4 If the non-compliance with the delivery time is due to force majeure, such as, but not limited to natural disasters, epidemics, war, civil war, revolution, terrorism, sabotage, reactor accidents, industrial disputes or other events that are beyond the seller’s sphere of influence, then the seller is released from his performance obligations for the duration of the event; the delivery time is extended accordingly. The seller will inform the buyer of the start and end of such circumstances as soon as possible. If the duration of the event exceeds a period of six months, the seller is also entitled to terminate the contract without compensation.
3.5 If the buyer – taking into account the exceptional legal cases – grants the delayed seller a reasonable deadline for performance and if the deadline is not met for reasons for which the seller is responsible, the buyer is entitled to withdraw within the framework of the statutory provisions. Further claims from delayed delivery are determined exclusively according to § 7 of these conditions.
§ 4 Passing of Risk, Acceptance, Packaging
4.1 The risk passes to the buyer when the delivery parts are loaded at the seller’s factory, even if partial deliveries are made and/or the seller takes over services such as shipping costs or delivery and
4.2 If an acceptance has been agreed, this must be carried out immediately on the agreed date, but in any case after the seller has reported that the buyer is ready for acceptance. The buyer cannot refuse acceptance if there is an insignificant defect, provided the seller expressly recognizes his obligation to remedy the defect.
4.3 If the dispatch or receipt is delayed or does not take place as a result of circumstances that are not attributable to the seller, the risk of accidental loss or accidental deterioration of the delivery item passes to the buyer from the day of notification of readiness for dispatch or receipt. The seller undertakes to take out the insurance required by the buyer, such as transport insurance, at the buyer’s expense.
4.4 Partial deliveries are permitted insofar as this is reasonable for the buyer.
4.5 Transport and other packaging in accordance with the packaging ordinance will not be taken back, unless otherwise agreed. The buyer ensures that the packaging is disposed of at his own expense.
§ 5 Retention of Title
5.1 The seller retains ownership of the delivery item until all claims have been met, in particular also the respective balance claims that the seller is entitled to in the course of the business relationship with the buyer (reservation of balance).
5.2 The buyer is obliged to treat the delivery item (goods subject to retention of title) delivered under retention of title with care; in particular, he is obliged to adequately insure it against theft, breakage, fire, water, and other damage at its replacement value at his own expense and to maintain the insurance for the entire time of the retention of title. The seller is entitled to take out this insurance himself at the expense of the buyer, unless the buyer has demonstrably taken out the insurance. Evidence must be provided in writing by the buyer at the request of the seller at any time.
5.3 If the goods subject to retention of title are combined with other items in such a way that they become an integral part of another item, the seller gains co-ownership of the other item. The production of a new item by combining or processing the reserved goods takes place in such a way that the seller always acquires a corresponding co-ownership share.
5.4 The buyer is entitled to resell the reserved goods in the ordinary course of business. In the case of the sale of the goods delivered or the goods subject to retention of title manufactured in accordance with § 5.3, the buyer shall now submit the claims against the buyers corresponding to the sale (final invoice amount including sales tax) or a corresponding part with all ancillary rights to the seller until the seller’s claims have been fully satisfied.
5.5 The buyer remains authorized to collect the receivables assigned in accordance with § 5.4; the seller’s authority to collect the claim itself remains unaffected. The seller will not collect the claim as long as the buyer meets his payment obligations to the seller from the amounts received, does not fall into arrears, there is no application to open insolvency proceedings, or the payment has been suspended. If one of the aforementioned circumstances exists, the seller has the right to have the buyer announce the claims assigned to the seller for security and to provide all the information necessary for his collection.
5.6 In the event of behavior contrary to the contract, in particular in the event of delayed payment, the seller is entitled to take back the delivery items after a reminder. In this, as in his attachment by the seller, there is no withdrawal from the contract by the seller.
5.7 The application to open insolvency proceedings entitles the seller to delivery and performance only after full payment has been made or only to delivery and performance against payment.
§ 6 Liability Defects
Regarding material and legal defects in the delivery, subject to the provisions in § 7, excluding further claims, the warranty is as follows:
6.1 Material Defects
6.1.1 Information provided by the seller about the properties of the delivery item corresponds to the results of his measurements, calculations, and data, e.g. material properties, are deemed to be the agreed quality, but not as an assured property or even a guarantee within the meaning of § 443 BGB.
6.1.2 Claims by the buyer due to a material defect presuppose that he has properly complied with his inspection and notification obligations owed pursuant to § 377 HGB.
6.1.3 All parts which turn out to be defective due to a circumstance prior to the transfer of risk are to be repaired free of charge at the discretion of the seller or to be delivered anew. The seller must be immediately informed of such defects in writing. Replaced parts become the property of the seller.
6.1.4 For material third-party products, the seller’s liability for defects is limited to the assignment of the seller’s claims for defects against his supplier. If the assigned claims for material defects fail, the claims of the buyer from material defects against the seller are revived.
6.1.5 In order to carry out all improvements and replacement deliveries that the seller deems necessary, the buyer must give the seller the necessary time and opportunity after consultation with the seller. Otherwise, the seller is released from liability for the resulting consequences. The buyer has the right to have the defect remedied by themselves or through a third-party and to demand reimbursement from the seller of the necessary expenses only in urgent cases of operational safety or to prevent disproportionate damage, whereby the seller must be informed immediately by the buyer.
6.1.6 The seller bears the expenses required for the purpose of subsequent performance, provided that this does not result in a disproportionate burden on the seller and insofar as the complaint proves to be justified. When selling a newly manufactured item, they also replace, within the scope of his legal obligation, the necessary expenses incurred by the buyer, which have arisen from recourse claims in the supply chain.
6.1.7 The buyer has the right to withdraw from the contract if the seller loses a reasonable deadline set for the rectification or replacement delivery, taking into account the exceptional legal cases within the framework of the provisions of the law. If there is an insignificant defect, the buyer is only entitled to a reduction in the contract price.
6.1.8 The seller has no guarantee for defects that can be traced back to measures or constructions that the buyer has expressly requested or that occur on materials or products that the buyer has provided or the use of which the buyer has expressly requested, contrary to instructions from the seller. In particular, no guarantee is assumed in the following cases: unsuitable or improper use, incorrect assembly and/or commissioning by the buyer or third parties, use of non-original parts and materials, normal wear and tear, incorrect or negligent handling, improper maintenance, use of unsuitable operating resources, failure to secure or insufficient backup of data by the buyer, unusual effects of any kind (e.g. vibrations from other units, penetration of foreign bodies), chemical, electrochemical or electrical influences, if they are not the fault of the seller, breach of the buyer’s obligations as described in § 6.2.4.
6.1.9 If the buyer or a third-party makes improper improvements, the seller is not responsible for the resulting consequences. The same applies to changes made to the delivery item without the express prior consent of the seller.
6.1.10 The buyer is obliged to return the defective part to the seller at the seller’s request.
6.1.11 Subject to § 8.2, the above warranty provisions apply accordingly to the rectification of defects.
6.2 Deficiency in Title; Export Control
6.2.1 If the use of the delivery item leads to a domestic violation of industrial property rights or copyrights, the seller will, at his expense, fundamentally provide the buyer with the right to continue using it or modify the delivery item in a manner that is reasonable for the buyer in such a way that the property right infringement no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the buyer is entitled to withdraw from the contract. Under the above conditions, the seller also has the right to withdraw from the contract. In addition, the seller will indemnify the buyer from undisputed or legally established claims of the relevant property right holder in cases for which he is responsible.
6.2.2 The commitments of the seller as mentioned in § 6.2.1 are final, subject to § 7 in the event of a breach of property rights or copyright. They only exist if the buyer informs the seller immediately of any violations of property rights or copyrights, the buyer supports the seller adequately in defending against the claims asserted or enables the seller to carry out the modification measures in accordance with § 6.2.1. The seller is entitled to all defence measures including extrajudicial regulations; the legal defect is not based on instructions from the buyer or on the fact that the injury only arises due to the combination of the delivery item by the buyer with products or deliveries outside the scope of delivery of the seller and does not cause the legal violation was that the buyer changed the delivery item himself or used it in a manner not in accordance with the contract.
6.2.3 The seller does not guarantee that the end products made from the delivery item are free of any third-party property rights.
6.2.4 If the buyer intends to export or deliver or use the delivery item to a country or territory against which the United Nations, the European Union, or the United States have imposed or put into force an embargo or other export or re-export restrictions, the buyer will inform the seller of this in writing before the conclusion of the contract in accordance with § 1.2. If the buyer takes such an intention after the contract has been concluded, such export, transfer, or use requires the prior written consent of the seller. Notwithstanding this, the buyer warrants that (i) he will comply with the relevant export control regulations, including embargoes and other sanctions in force in Germany, the European Union, and the United Nations, and (ii) that he will also comply with all other foreign export control regulations, including embargoes and sanctions, provided that Germany, the European Union, or the United Nations have adopted regulations, embargoes, or sanctions comparable to those in the countries concerned. In the event of the resale of the delivery item by the buyer, the latter will ensure through appropriate agreements that these obligations are passed on across the entire supply chain and to the end buyer with whom the delivery item remains. In the event of a violation of this regulation, the seller is entitled to terminate the contract with immediate effect.
§ 7 Liability
7.1 If the delivery item cannot be used in accordance with the contract due to the fault of the seller as a result of negligence or incorrect execution of proposals and advice given before or after the conclusion of the contract or due to the violation of other contractual ancillary obligations, the regulations shall apply with the exclusion of further claims by the buyer in accordance with §§ 6 and 7.2; this particularly applies if the instructions for operation and maintenance of the delivery item are not followed by the buyer.
7.2 The seller shall only be liable for damage that has not occurred to the delivery item itself in the event of intent, gross negligence on the part of the owner/management or senior executives, culpable injury to life, limb, health, or defects which he maliciously concealed or if he has given a guarantee for the quality of the item, in the event of defects in the delivery item, insofar as there is a liability under the Product Liability Act for personal injury or property damage to privately used items, regardless of the legal basis of the claims. In the event of culpable violation of essential contractual obligations, the seller shall also be liable for gross negligence on the part of non-executive employees and for slight negligence, in the latter case limited to the contractually typical, reasonably foreseeable damage. Essential contractual commitments are those whose fulfilment enables the proper execution of the contract and upon the compliance of which the buyer can rely.
7.3 Further claims for damages, regardless of the legal basis upon which they may be based, are excluded. To the extent the seller’s liability for damages is excluded or limited, this also applies to the personal liability for damages pertaining to the seller’s employees.
§ 8 Statute of Limitations and Limitation Periods
8.1 All claims of the buyer lapse after 12 months, regardless of the legal reasons on which they are based; this also applies to the limitation of recourse claims in the supply chain according to § 445b (1) BGB. The suspension of statute of limitations in § 445b (2) BGB remains unaffected. The statutory limitations apply to wilful or fraudulent behavior in the event of culpable injury to life, limb, and health, as well as claims under the Product Liability Act. They also apply to defects in a structure or regarding delivered articles that were used in accordance with his normal use for construction and which caused the structure to be defective.
8.2 Insofar as the seller’s rights arise due to material defects as part of the seller’s rectification of defects, any claims become statute-barred no later than 24 months from delivery of the original delivery item.
§ 9 Applicable Law, Place of Jurisdiction
9.1 Only the law of the Federal Republic of Germany, which is decisive for the legal relationships between domestic parties, applies regarding all legal relationships between the seller and the buyer.
9.2 The place of jurisdiction for any disputes is the responsible court in the seller’s seat, Villingen-Schwenningen. However, the seller is entitled to file legal suit at the buyer’s registered office.
§ 10 General Provisions
10.1 Unless otherwise stated in the order confirmation, the place of performance for the mutual obligations from the contractual relationship is the registered office of the seller, e.g.
Villingen-Schwenningen. This also applies if customary clauses have been agreed upon.
10.2 Declarations that serve to establish, safeguard, or enforce rights must be in writing. The written form is also fulfilled in text form by means of remote data transmission (e.g. email) or fax, unless the written form is required by law.
10.3 The buyer may not transfer his rights under the contract to third parties without the seller’s written consent.