• 1.
    General information
    The following General Terms and Conditions of Delivery and Payment apply to all current and future deliveries and services provided to businesses by C. H. Schäfer Getriebe GmbH (“Company”). Confirmations to the contrary by the customer making reference to its own terms and conditions of business or purchase are hereby excluded.
  • 2.
    Order placement, acceptance and work equipment
  • 2.1
    Offers made by the Company are subject to change and are not binding unless expressly indicated otherwise.
  • 2.2
    A contract is formed only when Company provides confirmation of the order in writing or by fax or when the delivery is accepted by the customer. Any confirmations to the contrary constitute a new offer.
  • 2.3
    The persons shown in the commercial register are authorised to represent Company to the extent indicated therein. Should ancillary agreements or verbal commitments made by other employees of Company go beyond the scope of the written agreement, written confirmation shall be required from Company.
  • 2.4
    Company reserves all rights of ownership and copyright to working drawings and other documentation (“Documents”) related to the offer or order. Such Documents may be disclosed to third parties only with the prior consent of Company and, if the contract is not awarded, shall be returned immediately on request. Sentences 1 and 2 apply accordingly to Documents belonging to the customer; however, such Documents may be disclosed to third parties to whom Company is authorised to assign deliveries.
  • 3.
    Prices
  • 3.1
    Unless indicated otherwise, prices are in euro, exclusive of VAT. VAT will be invoiced separately at the applicable rate in accordance with valid tax regulations.
  • 3.2
    Sales prices shall be determined based on Company’s non-binding price list, less any discounts agreed individually with the customer. Prices shall apply ex warehouse and exclude packaging and other shipping and transport costs.
  • 3.3
    Prices shall be calculated based on the information provided by the customer.
  • 3.4
    The prices quoted are Company’s current sales prices and are based on the current cost of materials and wages. In the event of increases in the cost of materials and wages or other ancillary costs, the price may be increased accordingly. Should the purchase price increase by more than 40%, the customer shall have the right to withdraw from the contract.
  • 3.5
    The scope of the contract is limited to the services expressly described therein based on the dimensions, design drawings and other information provided by the customer. If, during the execution of the contract, it becomes apparent that Company will need to provide additional services, the need for which could not be identified based on the information available at the time of confirmation of the order, the customer shall pay for such services separately.
  • 4.
    Withdrawal from the contract and payment of damages
  • 4.1
    Should the customer withdraw from the contract by agreement with Company prior to the production of the products ordered by Company, Company may claim damages for the costs it has incurred (work preparation, technical clarification, measuring costs, etc.).
  • 4.2
    Should the customer exercise its termination right pursuant to section 649 of the German Civil Code (BGB) prior to the production of the products specified in the order, the customer shall pay Company 30% of the order value. This does not affect Company’s right to claim and provide evidence for payment in excess of this amount. The customer retains the right to prove that the payment owed less the expenses saved is substantially lower than the fixed amount.
  • 5.
    Delivery
  • 5.1
    Delivery periods and deadlines shall be binding only if expressly confirmed as binding in writing by Company. Delivery periods shall begin from the time of the written approval. Adherence to execution periods shall be conditional upon the timely receipt of all documents to be supplied by the customer, and the necessary permits and approvals, as well as the customer’s compliance with the agreed payment terms. If these requirements are not met in a timely manner, the deadlines shall be extended accordingly; this shall not apply if Company is responsible for the delay. The delivery deadline shall be deemed to have been met if the goods are ready for dispatch within the agreed period and the customer has been notified accordingly.
  • 5.2
    In case of force majeure or other significant circumstances (such as strikes, lock-outs, operational interruptions or transport disruptions, etc.) outside of Company’s control, Company may extend the deadline by the amount of time of the impairment of deliveries and services plus a reasonable start-up time. In the event of a long-term impairment of this type, Company may fully or partially withdraw from the contract Company shall immediately inform the customer that the goods are not available and reimburse any consideration already received.
  • 5.3
    In all cases, Company reserves the right to make correct and timely delivery, provided that Company has concluded a corresponding hedging transaction and/or is not responsible for the delayed delivery by its supplier(s). Section 5.2 shall apply with regard to the consequences.
  • 5.4
    Company may make and charge for partial deliveries provided that these comprise a complete individual work.
  • 5.5
    If delivery of the goods is delayed for reasons for which the customer is responsible, the delivery shall be deemed to have been made when the customer is notified that the goods are ready for dispatch.
  • 6.
    Transfer of risk and acceptance
  • 6.1
    Risk is transferred to the customer as follows: a) For deliveries not including set-up or assembly: when the goods leave Company’s premises for dispatch or when the goods are made available to the customer for collection. The shipment will not be insured. The customer is responsible for taking out transport insurance. b) For deliveries including set-up or assembly with acceptance.
  • 6.2
    If the delivery, start of performance of set-up or assembly, or acceptance is delayed for reasons for which the customer is responsible, or if the customer is otherwise in default of acceptance, risk will transfer to the customer at the time of the delay. The same applies if assembly is interrupted for reasons for which the customer is responsible and if Company has agreed to hand over the performance effected up until this time to the customer.
  • 6.3
    If dispatch is delayed for reasons outside Company’s control, Company may, after setting a deadline to no avail, store the goods at the customer’s risk and request reimbursement of the costs incurred. Company may take out insurance against storage risks at the customer’s expense.
  • 6.4
    The customer shall accept the ordered goods except in case of material defects. This also applies to self-contained partial services.
  • 6.5
    In the event of default of acceptance, Company may, after the expiry of a reasonable grace period and a warning of refusal, request compensation of 30% of the agreed order amount without the need to provide any evidence. This does not affect Company’s right to claim and provide evidence for damages in excess of this amount. The customer retains the right to prove that no damage was suffered or that the damage suffered was substantially lower than the fixed amount.
  • 7.
    Payment
  • 7.1
    Payment of the purchase price is due within 30 days of receipt of the invoice. Any payment terms that differ from this require a separate agreement.
  • 7.2
    Cheques and – if payment by bill of exchange has been agreed – bills of exchange or acceptance will be accepted in fulfilment of debt. Discount and collection charges must be paid to Company without delay.
  • 7.3
    At Company’s discretion, payments may be set off against other outstanding receivables.
  • 7.4
    Set-off or retention by the customer is excluded unless the claim is undisputed or established as final and absolute.
  • 7.5
    Company’s representatives and agents are not authorised to collect debts. Payments made to the aforementioned parties therefore do not release the customer from its obligation to make the payment to Company.
  • 7.6
    Company shall be required to fulfil its performance obligations only if the customer is sufficiently creditworthy. In the event of a significant deterioration in the customer’s financial situation, Company may request immediate payment, even if the customer had previously been allowed a period of credit. In this situation, further delivery shall be subject to the provision of security. Company may therefore also withhold deliveries that have not yet been made and withdraw from the contract. This does not release the customer from its obligations arising from the part of the contract already fulfilled by Company.
  • 8.
    Retention of title
  • 8.1
    The goods shall remain the property of Company until all of its claims against the customer have been satisfied (reserved goods), even if specific goods have been paid for.
  • 8.2
    The customer shall not be permitted to gift or pledge the reserved goods or to assign them as collateral. The customer shall immediately notify Company of any pledging of the reserved goods and inform the pledgee of the retention of title. The customer shall store the reserved goods with due care and diligence and insure them against the customary risks, whether or not they have been combined, mixed, processed or transformed with other items.
  • 8.3
    The customer may resell or rent the reserved goods in the course of its ordinary business activities, provided that the customer is not in payment arrears for any amount arising from the business relationship with Company and has not entered into any non-assignment agreement with its own customer. The customer hereby assigns to Company, by way of security for the settlement of all claims, its future claims against its customers arising from the resale or rental, without any special declaration being required at a later date; this assignment extends to current account balance claims under existing relationships or upon termination of such relationships. In the event of the resale of reserved goods on credit, the customer shall reserve ownership in relation to its customer. The customer hereby assigns all rights and claims arising from this retention of title to Company. Until further notice, the customer shall be entitled to collect the assigned debt at its own expense. However, the customer is not permitted to dispose of it in any other way, e.g. through assignment. At Company’s request, the customer shall inform its customer of the assignment and provide Company with the documents and information required to assert its rights against the said customer.
  • 8.4
    The customer may, in the ordinary course of business, combine or mix the reserved goods with other items, or process or transform the reserved goods. In the event that Company loses ownership of the reserved goods due to the combination, mixing, processing or transformation of the reserved goods, the customer hereby transfers ownership of the new item to Company; this condition shall become void upon satisfaction of outstanding claims, as set out in section 8.1. In the event that the customer’s expectant right to the reserved goods expires due to the combination, mixing, processing or transformation of the reserved goods, Company hereby transfers ownership of the new item to the customer, subject to the condition precedent that outstanding claims are satisfied, as set out in section 8.1. The reserved goods shall be processed or transformed for Company as a manufacturer in accordance with section 950 BGB without any claims arising against Company. If the reserved goods are combined, mixed, processed or transformed with other items that do not belong to the customer, Company shall acquire part ownership of the new item based on the market value of the reserved goods in relation to the value of the other processed items at the time of processing. If the reserved goods are resold after being combined, mixed, processed or transformed or together with other items that do not belong to Company, the customer’s claim against its own customer shall be assigned to Company in proportion to the market value of the reserved goods compared to the value of the other items at the time of resale.
  • 8.5
    Should the customer fall into arrears in relation to all or part of its payment obligation, become over-indebted or cease making payments, or if an insolvency application is filed, Company may, without prejudice to its other claims, immediately take possession of all goods still subject to retention of title. This request shall not constitute a withdrawal from the contract. Company may, with due care and diligence, sell the reserved goods at the customer’s expense and settle its outstanding claims from the proceeds.
  • 8.6
    If the value of the security exceeds Company’s claims against the customer by more than 20%, Company shall, at its discretion, release the security to which it is entitled at the customer’s request.
  • 9.
    Warranty
  • 9.1
    The customer shall inspect the goods for transport damage immediately upon receipt and to inform Company or the supplier of any damage identified.
  • 9.2
    The customer shall inspect the goods for defects immediately upon receipt and perform a professional incoming goods inspection including materials testing. The incoming goods inspection shall be documented in writing and, if a defect is identified, Company shall be informed within one week. In the event of defects that cannot be identified even with a professional incoming goods inspection, Company must be informed in writing within one week of discovery of a defect during the warranty period. If the customer does not notify Company of a defect within the specified period, the goods shall be considered to be free of defects and accepted in accordance with the contract.
  • 9.3
    The warranty period is one year.
  • 9.4
    Minor deviations from the agreed colour, dimensions or design characteristics shall justify a complaint only if adherence to the specified dimensions and colours was expressly agreed. Claims for defects shall also not be admissible for minor impairments of usability, normal wear and tear or damage resulting from incorrect or negligent handling after transfer of risk, excessive use, unsuitable equipment, or due to extraordinary external influences not provided for in the contract. Defects resulting from incorrect assembly or commissioning are also excluded unless Company provided this service. Should the customer or a third party make improper changes or perform improper repairs or maintenance, claims for defects relating to this work and consequences arising therefrom shall also not be admissible.
  • 9.5
    Claims shall be limited to rectification of the defect or to supply of an item free from defects (subsequent performance), at Company’s discretion. If such subsequent performance fails, the customer may, at its discretion, reduce the purchase price or withdraw from the contract.
  • 9.6
    The customer is responsible for the accuracy of the dimensions and characteristics it stipulates, and for the proper technical reading of its plans and drawings.
  • 10.
    Liability
  • 10.1
    Company, its representatives and its vicarious agents shall be liable for breaches of contractual and non-contractual obligations, in particular due to impossibility, delay, faults during conclusion of the contract and tortious action, only in cases of wilful misconduct or gross negligence. Where an obligation is breached by other vicarious agents, liability is limited to the typically occurring damage that is foreseeable upon conclusion of the contract.
  • 10.2
    This exclusion and these limitations of liability shall not apply to personal injury, culpable breaches of essential contractual obligations, the absence of guaranteed characteristics, or in cases of strict liability in accordance with the German Product Liability Act (Produkthaftungsgesetz).
  • 10.3
    If guaranteed characteristics are absent, Company shall not be held liable for consequential damages not covered by the guarantee. Furthermore, liability for ordinary negligence shall be limited to typically occurring damage that is foreseeable upon conclusion of the contract.
  • 11.
    Orders that Company executes based on technical specifications stipulated by the customer shall be subject to the following additional conditions:
  • 11.1
    The customer shall provide Company with all design drawings required for the execution of the order, as well as any other documents, information etc. needed to fulfil the order. The customer shall inform Company of any special conditions and circumstances of the planned work that are technically significant due to the intended use.
  • 11.2
    The customer shall be liable for the completeness and accuracy of the specified dimensions of design drawings that it provides, as well as other information that affects the suitability, set-up and assembly of the system. Furthermore, Company shall be liable for ensuring that the use of the drawings and documents does not infringe any patents or other third-party rights.
  • 11.3
    Items that Company manufactures in accordance with the documents and information described in subsection 1 shall be deemed to be in accordance with the contract. The customer shall bear the full risk for the suitability of these items for achieving the contractual purpose.
  • 12.
    The following additional conditions apply to orders/contracts for which Company needs to provide design services:
  • 12.1
    The customer shall provide Company with all technical specifications necessary for the execution of the order and all information on important technical conditions and the intended type of use.
  • 12.2
    Design drawings and other necessary design documents created by Company shall generally be considered approved in accordance with the contract if countersigned by the customer.
  • 12.3
    If a sample or prototype has been supplied based on design services provided by Company, the customer shall immediately inspect the sample or prototype and report any defects or deviations from the design specifications in writing. Should it fail to do so, the sample or prototype shall be deemed to be in accordance with the contract and approved, in particular no later than the date on which further items corresponding to the sample or prototype are ordered.
  • 12.4
    Warranty claims based on complaints not raised on time in accordance with section 12.3 about characteristics that were already present in the sample or prototype and are also present in items manufactured based on this sample or prototype, including claims for compensation for defects and consequential damages pursuant to section 10, are excluded. This does not apply if the defects or guaranteed characteristics of the sample or prototype could not be identified during a timely inspection of the sample or prototype, even by a specialist, within the warranty period for the sample/prototype. In the latter case, the conditions set out in section 9 shall apply without restriction to items produced based on the sample or prototype.
  • 12.5
    Only information provided in writing as the basis for design drawings shall determine the contractually agreed quality. The customer is responsible for assessing the suitability of ordered parts for the intended purpose and shall define the information required in accordance with subsection 1.
  • 13.
    Set-up and assembly shall be performed only by express agreement and subject to the following additional conditions:
  • 13.1
    The customer shall provide the necessary workers and equipment at its own cost.
  • 13.2
    The customer is responsible for providing the necessary information on the location of hidden power lines or similar before assembly work begins, and shall also provide the necessary structural data without being requested to do so. Before set-up or assembly begins, the supplied parts needed for the work must be available on site and all preparatory work must have progressed to such a degree as to enable the set-up or assembly work to start immediately and to be completed without interruption. If the set-up, assembly or commissioning work is delayed for reasons for which Company is not responsible, the customer shall cover the costs associated with waiting time and any additional travel by assembly personnel.
  • 13.3
    The customer shall provide evidence of the assembly personnel’s working hours on a weekly basis. Furthermore, the customer shall immediately provide the assembly personnel with written confirmation of the completion of the set-up or assembly work. Unless otherwise agreed, the customer shall pay Company the rates agreed upon order placement for hours worked and for overtime, night work, work on Sundays and public holidays, work under difficult conditions, and planning and monitoring. Preparation, travel and feedback constitute working time. Travel costs, tool transportation costs, and allowances for working hours and for rest days and public holidays shall be charged separately.
  • 13.4
    Assembly personnel will not perform test runs on systems not supplied by Company.
  • 14.
    Applicable law, place of performance and jurisdiction
  • 14.1
    The law of the Federal Republic of Germany shall apply.
  • 14.2
    The place of performance for all contractual and legal claims is Ohorn, Saxony.
  • 14.3
    If the customer is a businessperson, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, including regarding cheques/bills of exchange, shall be Ohorn, Saxony. The same place of jurisdiction shall apply if the customer does not have a general place of jurisdiction in Germany at the time of initiating legal proceedings.
  • 15.
    Severability clause
    Should any provision in these terms and conditions or in any other agreement be or become ineffective, this shall not affect the validity of the remaining provisions or agreements.
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