General Terms & Conditions of Sale & Delivery of Schmalenberger GmbH + Co. KG

I. Scope

1. Our General Terms & Conditions of Sale & Delivery apply exclusively, and individual agreements with the customer have priority. Our General Terms & Conditions of Sale & Delivery also apply to all future business transactions and all business contact with the customer, such as the commencement of contract negotiations or the initiation of a contract, even if they are not expressly agreed to again or attention has not been expressly drawn to them again.
2. We do not recognise any terms or conditions of the customer deviating from or contrary to our General Terms & Conditions of Sale & Delivery. Previous agreements concluded and previous versions of our General Terms & Conditions of Sale & Delivery are superseded by these General Terms & Conditions of Sale & Delivery.
3. Acceptance of services and deliveries is considered as recognition of the validity of our General Terms & Conditions of Sale & Delivery.

II. Conclusion of contract

1. Conclusion of contract outside our webshop:
   1. Unless otherwise agreed, our offers are binding for two weeks from the date of submission of the offer.
   2. We are only bound to meet an order if it has been confirmed by us in writing or we commence execution of the order. This applies in particular if the customer‘s order is not based on a specifically binding offer on our part.
2. Conclusion of contract via our webshop
   1. The presentation of products and services in the online shop does not constitute a legally binding offer, but rather a non-binding online catalogue. You are placing a binding order for the goods contained in the shopping basket by clicking on the “Order subject to charge” button. The system checks the availability of the ordered goods. Confirmation of receipt of your order is issued by email immediately after receipt of your order. We either accept or reject your order in this email confirmation.
   2. The contract can only be concluded in German.
   3. Your previous orders and the associated contract text can be viewed under “My account” under the link “Order history”.
3. If our quotation or confirmation of order is based on technical data supplied by the customer (illustrations, drawings, details of weights and dimensions, etc.), our offer is only binding if the order can be executed in accordance with the technical specifications of the customer. If, following the concluding of the contract, it transpires that the order cannot be executed in accordance with the technical specifications of the customer, we shall be entitled to withdraw from the contract if, and to the extent that, the customer is not prepared to accept the alternative technical solution suggested by us and, if necessary, to bear any additional costs which may actually arise. In the event of a withdrawal from the contract of this nature resulting from the culpable behaviour of the customer, we shall be entitled to demand 10 % of the net order value from the customer by way of flat-rate compensation, unless the customer can prove that we have suffered lower damages. Should the customer succeed in proving this, he shall only be obliged to pay compensation for the actual lower level of damages.
4. If, before an order is placed, we supply sketches, draft designs or samples or undertake similar preliminary work, we shall be entitled to invoice the customer for same at the cost price if no order based on said is eventually placed by the customer within an appropriate period of time. All such drafts, samples, etc. shall remain our property until they have been paid for in full.

III. Delivery

1. Our written quotation or confirmation of order is decisive for the scope of delivery. Secondary agreements and amendments require our written confirmation.
2. We are entitled to make part deliveries in respect of all orders to a reasonable extent. We are also entitled to employ subcontractors to fulfil our contractual obligations.
3. Delivery periods and deadlines represent best possible details but, in general, these are not binding. The commencement of the delivery period and adherence to delivery deadlines are subject to the proviso that the customer fulfils his obligatory co-responsibilities on time and in the correct manner, provides all the documents required of him and renders any agreed advance payments. When we hand over the ordered goods to a haulage contractor or notify the customer of readiness for dispatch, the date of the handover or notification of readiness for dispatch shall count as the delivery deadline.
4. Unless expressly marked as binding, any documents accompanying our quotations, such as drawings and details of weights and dimensions, should only be considered as approximations.
5. If a delivery or service is agreed on an on-call basis, the customer must accept the entire delivery or service ordered within a reasonable period or within three months at the latest after the agreement of the on-call order. At the end of this on-call period, we shall be entitled to invoice the full order by breaking payments down step by step according to provision of the services that have been ordered in total.
6. If the delivery or service is delayed as a result of force majeure measures such as industrial disputes, strikes, lockouts or other occurrences at home or abroad for which we are not responsible, the delivery period shall be extended appropriately for the duration of the restriction and its after effects. This also applies if the said circumstances affect our subcontractors. If force majeure makes it impossible to realise the service to be provided for an indefinite length of time, we are entitled to withdraw from the contract. Moreover, reasons underlying force majeure shall also not be attributable to us if they arise through no fault of our own during an existing delay. In serious cases, we shall notify our customers without delay at the beginning and end of hindrances of this nature.
7. In the event of delays in the provision of services, we shall not have fallen behind schedule if we or our vicarious agents are only guilty of minor negligence.
8. We shall not be considered to have fallen behind schedule in cases of force majeure or other exceptional circumstances or circumstances for which we are not responsible.  In this event, we shall also be entitled to withdraw from the contract if we have already fallen behind schedule. If, in such cases, we do not respond within a reasonable period of time to the customer‘s enquiry as to whether we will still provide the outstanding service, the customer, for his part, shall be entitled to withdraw from the contract in respect of that part of the service not yet fulfilled by the contractor.
9. If the customer is in default of acceptance of delivery, or dispatch is delayed at the customer‘s request, he shall be charged for the costs incurred in storage on our premises or the premises of a third party, commencing with our notification of readiness for dispatch. We shall be entitled to calculate these costs at the flat rate of 0.5 % of the invoice value (including value added tax) for each full week or a maximum of 10 % of the invoice value (including value added tax). The customer shall remain at liberty to prove a lesser amount of damage. After setting a reasonable period of time and seeing this expire without result, we shall be entitled to dispose of the delivered article otherwise and, subsequently, to supply the customer anew within a reasonably extended period of time.
10. In the event of us falling behind schedule, the customer shall be entitled to claim compensatory damages for the delay, subject to his providing proof thereof. In cases of minor negligence, compensation shall be limited to 0.5 % of the value of the entire delivery consignment for each full week of the delay or a maximum of 5 % of the value of the entire delivery consignment.
11. In the event of us falling behind schedule in executing an order, the customer shall be entitled to set us a reasonable additional period of grace in which to do so. Should this period expire without result, he shall be entitled to withdraw from the contract (unless, despite the period of grace, we had no reason to expect the customer‘s withdrawal) or, in the event of culpable behaviour on our part, to demand payment of compensation instead of the ordered service. In cases of minor negligence, claims for compensation shall be limited in accordance with the previous subparagraph.
12. If the contract concluded obliges us to render advance performance or undertake preliminary work, we may decline to meet the service obligations demanded of us if, following conclusion of the contract, it becomes evident that our entitlement to payment for said is at risk, due to a lack of ability of the other party to pay. This shall apply in particular if the payment owed to us is threatened on the grounds of poor financial circumstances or other obstacles to payment, such as export or import bans, acts of war, the insolvency of suppliers or the loss of essential employees through illness.
13. We may refuse to fulfil our service obligations if these necessitate expenditure which, taking the content of the order and the precept of acting in good faith into consideration, is considerably at variance with the interests of the customer in terms of payment. This applies in particular if the service or manufacturing which is not provided or falls short of requirements does not adversely affect the customer or does so only to an insignificant extent (e.g. the presence of minor blemishes).

IV. Transfer of risk

The risk of destruction or deterioration of the goods is transferred to the customer with the handover of the goods for dispatch. This also applies to part deliveries. If dispatch is delayed for reasons attributable to the customer, the risk shall be transferred to the customer on notification of readiness for dispatch.

V. Changes to the scope of service

We reserve the right to make insignificant changes and, in particular, improvements to the goods up until delivery which are regarded as customary in trade, provided the interests of the customer are not unreasonably affected as a result.

VI. Prices

1. Our prices are net prices and are always quoted ex works (EXW Tübingen, Incoterms 2010). When invoicing, value added tax is included at the current mandatory rate. Shipping costs, customs duties, transport insurance and other costs associated with delivery, including costs for the compilation of prescribed official safety and conformity certificates, shall be borne by the customer. If the customer  requires freight insurance, we shall arrange this for him at his expense if requested to do so by him in writing.
2. In the event of our suppliers increasing their prices relating to the product concerned or its basic materials during the period between conclusion of the contract and delivery, and in the event that more than four months elapse between the time the contract is concluded and the date agreed for our delivery or service provision, we shall also be entitled to increase prices for the customer accordingly.

VII. Terms of payment

1. Our accounts receivable are due for payment on receipt of invoice. The customer shall be considered in arrears of payment following the expiry of 30 days from receipt of invoice, even in the absence of a reminder. From that date onwards, he shall be required to pay us compensation for damages due to delay, particularly the mandatory default interest.
2. Unless otherwise expressly agreed, the customer is not entitled to make any deductions.
3. Payment by bills of exchange, cheques or bills of acceptance is only allowed by express agreement and only then on account of payment. Discounts, expenses, note tax and collection charges shall be borne by the customer and are due for payment immediately. In the case of payments by cheque, payment shall only be deemed to have been made when the cheque is cashed, not on receipt of the cheque.
4. Our claims for payment may only be offset against undisputed or legally established claims. The same applies to the assertion of a right of retention. Furthermore, the customer is only entitled to exercise a right of retention insofar as it relates to the same contractual relationship.
5. The transfer of debts owing to us by the customer is excluded.

VIII. Retention of title

1. We reserve title to goods supplied by us until all outstanding debts arising out of the order have been cleared. If other accounts receivable are owed to us by the customer in addition to the debt arising out of the order at the time of delivery, we shall reserve title to the goods supplied by us until all the debts specified above have been settled (extended reservation).
2. In the event of the customer paying by cheque or bills of exchange, the debt arising out of the order and delivery shall continue to exist until the amount due is conclusively at our disposal.
3. The extended reservation applies likewise to the balance if debts are settled by way of a current account.
4. If the customer processes the goods still subject to retention of title, the said processing shall benefit us in that we acquire co-ownership of the new article in a proportion corresponding to the ratio of the purchase value of the delivered article to the overall sales value of the new article at the time of processing. If the customer combines our goods with others not belonging to us, we shall be entitled to co-ownership of the newly manufactured article corresponding to the ratio of the purchase value of our reserved goods (i.e. goods subject to retention of title) used for the manufactured article to the sales value of the new article at the time of processing.
5. If the goods subject to retention of title are combined, mixed or blended inseparably with other goods, we shall acquire co-ownership of the entire quantity corresponding to the value of our consignment (§§ 947, 948 BGB – German Civil Code). If, as a result of the combining, mixing or blending process, the customer acquires sole ownership, he transfers co-ownership to us with immediate effect corresponding to the ratio of the purchase value of the reserved goods (i.e. goods subject to retention of title) to the sales value of the newly manufactured goods at the time of the combining, mixing or blending process. We shall accept this transfer. In such cases, the customer shall be responsible for the safekeeping of the goods in our ownership free of charge.
6. The retention of title shall extend to all debts owed to the customer from the resale of the delivered goods or the resale of the newly manufactured goods. Debts shall be assigned to us to the level of the outstanding invoiced amount. The customer shall assign these future debts at the time they arise as a form of security. We shall accept this assignment. The customer shall only be entitled to dispose of the reserved goods or the newly manufactured goods on condition that his purchasing or wages liability is transferred to us in accordance with the above provisions. The customer is not entitled to undertake any other forms of disposal.
7. The customer may neither pledge the delivered article nor assign it as security. The customer shall inform us immediately in the event of any attachments, seizures or other dispositions by third parties.

• Our rights to security do not prevent the customer from disposing of articles belonging to us or debts assigned to us as security in the normal course of business. A normal course of business shall no longer exist if the customer defaults on his payment obligations to us one month after falling into arrears, or if one of his bills of exchange is subject to protest, payment is stopped or an application for insolvency is lodged. In this case, the customer is obliged, at our request, to notify his customers of the assignments, to cease and desist from collecting the debts and to permit collection to be carried out by us. Likewise, at our request, the customer is also obliged to inform us of the addresses of his own customers at the first request.
• If normal business dealings cease entirely, we shall be entitled to recover the reserved goods at the customer‘s expense. Neither a recovery of this nature nor the assertion of reservation of title nor attachment of the delivered article implies a withdrawal from the contract, insofar as this is legally permitted.
• At the customer’s request, we shall be obliged to release securities of our choosing acquired in accordance with the provisions above to the extent that the realisable value of the said securities exceed the debts to be secured.

IX. Liability for deficiencies and general liability

1. The period of limitation for claims due to defects in our deliveries and services is one year from the statutory limitation period. Following the end of this year, we may in particular also refuse supplementary performance without the customer being entitled to claims arising from this for a reduction, cancellation or compensation for damages. The period of limitation pursuant to this Clause IX 1. shall not apply to other claims for damages such as for refusal of supplementary performance and, generally, not to claims in the case of fraudulent concealment of the defect or if we have assumed a guarantee for the quality of the item.
2. Claims of the customer for supplementary performance due to defects in the items delivered by us are subject to the following provisions:
   1. If the delivered article is deficient, we can initially choose whether we shall provide subsequent performance by remedying the deficiency (subsequent improvement) or by delivery of a flawless article (substitute delivery). Our right to refuse the chosen type of subsequent performance under the statutory prerequisites remains unaffected.
   2. We are entitled to make the subsequent performance owed dependent on the customer paying the due payment. However, the customer is entitled to retain a part of the payment considered reasonable relative to the deficiency.
   3. The customer must give us the time and opportunity necessary to realise the owed subsequent performance, in particular to hand over the goods which were the subject of a complaint for purposes of inspection. In the case of substitute delivery, the customer must return the deficient article to us in compliance with statutory regulations.
   4. The expenses necessary for the purpose of inspection and subsequent performance, in particular transport costs, travel costs and work and material costs shall be borne by us if a deficiency actually exists. Expenses relating to subsequent improvement or subsequent performance resulting from the transport of the purchased article subsequent to delivery to a location other than the place of abode or business premises of the customer shall be borne by the customer. However, if it is determined that a request for remedying of a deficiency on the part of the customer is unjustified, we can request reimbursement of the costs incurred as a result from the customer.
   5. If the customer has incorporated the defective item into another item in accordance with its type and intended use, or has attached it to another item, we shall be obliged within the scope of supplementary performance to reimburse the customer for the expense required to remove the defective item and install or attach the rectified item or item free of defects which is delivered. Section 442 (1) of the German Civil Code (§ 442 Abs. 1 BGB) shall apply with the proviso that, as regards the knowledge of the customer, installation or attachment of the defective item by the customer shall replace the conclusion of the contract.
3. If the customer is a business person (Kaufmann) within the meaning of the German Commercial Code (Handelsgesetzbuch), the following also applies: Customer’s claims, particularly claims for subsequent performance, withdrawal from the contract, reduction in price and compensation, require that the customer has fulfilled his legal duty to examine the goods and to give notice of deficiencies (§ 377 HGB – German Commercial Code). Where a deficiency is found during examination or subsequently, the customer must notify us immediately of this in writing. Notification shall be deemed immediate if made within five working days of discovering the deficiency, whereby dispatch of notification in due time shall suffice to meet the deadline. Irrespective of this obligation of immediate examination and notification, the customer shall forward notification in writing of all apparent deficiencies (including incorrect deliveries and short deliveries) within five working days of deliver, whereby dispatch of notification in due time shall also suffice here to meet the deadline. In case of a failure by the customer to examine the goods correctly and/or notify of any deficiencies as required, our liability for any deficiencies which are not reported is excluded. This does not apply if we have maliciously concealed the deficiency. A business person (Kaufmann) within the meaning of this regulation is any entrepreneur who is registered in the commercial register or who conducts a commercial activity and requires a commercially organised business operation.
4. The customer can only claim compensation:
   1. for damages relating to
      1. an intentional or grossly negligent breach of duty on our part or
      2. an intentional or grossly negligent breach by any of our legal representatives, executives or vicarious agents of duties that are not essential contractual obligations (material contractual obligations) and not major or secondary obligations relating to defects in our deliveries or services.
   2. for damages relating to the intentional or negligent breach of essential contractual obligations (material contractual obligations) on our part or by one of our legal representatives, executives or vicarious agents. Essential contractual obligations (material contractual obligations) within the meaning of subsections 5.1 and 5.2 above are obligations whose fulfilment is essential for the proper execution of the contract and on the observance of which the customer regularly trusts.
   3. Furthermore, we are liable for damages due to a negligent or intentional breach of obligations in connection with deficiencies in our delivery or service (supplementary or secondary duties) and
   4. for damages that fall within the scope of a warranty (assurance) or a quality or durability guarantee expressly issued by us.
5. In the event of simple negligent violation of a fundamental contractual obligation, liability is limited by us to the amount of foreseeable damages typically to be expected at the time of conclusion of contract and where correct care is exercised.
6. Claims for compensation on the part of the customer in the event of simple negligent violation of a fundamental contractual obligation expire with effect one year from the beginning of the statutory period of limitation.
7. Claims for damages against us under statutory liability (e.g. under the German Product Liability Act (Produkthaftungsgesetz) and damages resulting from injury to life, limb or health) remain unaffected by the above provisions and exist to the legal extent within the statutory periods.
8. Statutory rights of the customer pursuant to Sections 445a, 444b and 478 of the German Civil Code (§§ 445a, 444b und 478 BGB) in the event that a claim is made against the customer or its other buyers in a supply chain remain otherwise unaffected, with the following exceptions:
   1. The customer bears the burden of proof that expenditures were necessary for supplementary performance and that the customer could not have refused subsequent performance or realised subsequent performance in a more cost-effective manner vis-à-vis its buyer pursuant to Section 439 (4) of the German Civil Code (§ 439 Abs. 4 BGB).
   2. The entitlement arising from Section 445a (1) of the German Civil Code (§ 445a Abs. 1 BGB) lapses pursuant to Section 445b (1) of the German Civil Code (§ 445b Abs. 1 BGB) in two years as of delivery by us to the customer. This deadline also applies if a longer period pursuant to Section 438 of the German Civil Code (§ 438 BGB) would apply.
   3. The period of limitation of the customer’s claims against us defined in Sections 437 and 445a (1) of the German Civil Code (§§ 437 und 445a Abs. 1 BGB) due to the deficiency of a newly manufactured item sold shall not commence until two months after the date on which the customer has fulfilled its buyer’s claims, provided the claims have not yet lapsed in the relationship of the customer to its buyer. This expiry suspension shall end five years at the latest after the time at which we have delivered the item to the customer.
9. If third parties are appointed or involved in the initiation or fulfilment of contractual obligations between the customer and us, the guarantee and liability limitations specified above shall also apply to the benefit of the said third parties.

X. Product liability

If, in comparison with German law, different and, in particular, more stringent product liability or product safety regulations apply in the countries in which the customer intends to dispose of our products, he must point this out to us when placing his order. In such cases, we shall be entitled to withdraw from the contract within one month. If the customer fails to make this declaration, we may withdraw from the contract within one month of learning of the corresponding legal position. In the latter case, the customer shall be obliged to release us from third party claims which go beyond our contractual obligations in a comparable case of product liability in Germany. This shall also apply if we abide by the contract.

XI. Assembly/Design/Services

1. Insofar as we pledge to work in the area of assembly, design or other services in the context of an order, we shall be liable for the provision of a service, but not for its specific success.
2. The customer shall assume responsibility at his own expense for all ancillary work outside our industry, including construction materials required, and ensure that these are made available in good time.
3. The customer shall take measures necessary to protect our property and our assembly personnel on the construction site.
4. The customer shall provide us with the necessary details of the position of concealed electrical cables, gas and water pipes or similar installations before any assembly work begins.
5. Where completion of design, setup, assembly or commissioning is delayed by circumstances for which we are not responsible, the customer shall bear all the costs relating to the waiting period and any additional travel necessary on the part of the installers or our assembly personnel. Other provisions in Subparagraph III of these General Terms & Conditions of Sale & Delivery remain unaffected hereby.
6. We shall only assume liability for the correct handling and setup or assembly of the delivered articles or for the provision of the commissioned design in accordance with our obligations. In the event of us being guilty of a violation of duty and being notified accordingly within the specified period, we may rectify the deficiency or provide a flawless article/design (subsequent performance) at our discretion. If we have attempted to rectify the deficiency twice or have supplied a flawless article/design once without succeeding in rectifying the said deficiency as a consequence, the customer may demand a reduction in the purchase price or, after a reasonable period of grace, cancel the contract concluded with us, instead of our rectifying the deficiency or providing a flawless article. Any claim for the payment of compensation shall only exist under the conditions stipulated in Subparagraph IX No. 4-7.
7. We assume no liability for the work of our installers or installation personnel or any other vicarious agents if the work is not directly associated with the delivery and assembly and has been arranged by the customer. The same applies if faults in the design are the result of incorrect information being supplied by the customer or a failure on his part to fulfil his collaborative obligations.
8. The customer shall reimburse us costs agreed on placement of the order for working hours, travel costs and supplements for overtime, night working and work on Sundays and public holidays.

XII. Acceptance

1. Where we are liable to carry out work within the framework of the respective order or the acceptance of our service is otherwise agreed, the customer is obliged to declare in writing that our contractual services have been fulfilled following the corresponding notice of completion from our company.
2. If acceptance is delayed for reasons for which we are not responsible, our service shall be deemed to have been accepted on the expiry of 7 calendar days following notification of its completion. Our liability for identifiable deficiencies shall cease to apply with acceptance, unless the customer has reserved the right to assert a claim in writing relating to a specific deficiency. Payment in full shall remain due, irrespective of any reservation of this nature.
3. Partial acceptances shall be undertaken at our request. The conditions above apply analogously.

XIII. Confidentiality

During the period of the contract and for three years following its termination, the customer shall keep secret any information made accessible to him in relation to the contract which is designated as confidential, or any business or operating secrets made known to him as a result of other circumstances and (insofar as it has not been expressly approved in writing or is necessary to achieve the purpose of the contract) not to record these, nor to disclose these to third parties or make use of these in any other way. Excepted in this respect is information,

• which was known to the customer before the commencement of contractual negotiations or disclosed by third parties as non-confidential, insofar as this does not constitute a breach of confidentiality obligations on their part;
• which the customer has formulated independently of us;
• which has been or becomes public knowledge through no fault or action on the part of the customer, or
• which must be disclosed by the customer as a result of official or court orders. In the latter case, the customer shall notify us immediately prior to disclosure. Other legal obligations relating to confidentiality remain unaffected.

XIV. Final provisions

1. The place of fulfilment and place of jurisdiction for any disputes arising between the parties from the contractual relationship shall be Tübingen, subject to the customer being a trader, a legal entity under public law or special fund under public law, or if the customer has no general place of jurisdiction in the Federal Republic of Germany or the customer relocates his place of jurisdiction abroad. By way of an exception in this respect, we shall also be entitled to take legal action against the customer at the customer’s general place of jurisdiction.
2. In the event of any provision in these General Terms & Conditions of Sale & Delivery or a provision within the framework of other agreements proving to be or becoming invalid, the validity of all the other provisions or agreements shall remain unaffected.
3. German law shall apply to contractual and other legal relationships with our customers. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

Version May 2019