Terms and Conditions for Delivery and Payment for all deliveries and services by SCHOTT Technical Glass Solutions GmbH with regard to Double Glazed Units for Fire Resistant Glazing
(valid since 01.12.2002)
The following terms and conditions for delivery and payment shall govern all deliveries and services by SCHOTT Technical Glass Solutions GmbH (“Seller”) with regard to Double Glazed Units for Fire Resistant Glazing. Any conflicting purchasing terms and conditions of the Purchaser are hereby expressly rejected. Any such purchasing terms and conditions shall apply only if the Seller expressly confirms them in writing. Acceptance of the delivered goods shall be deemed acknowledgement of Seller’s terms and conditions.
1. Prices/Terms and Conditions of Payment, offers, storage of goods
1.1 The Seller shall calculate the prices applicable on the date of delivery in EURO (EUR) (unless otherwise provided for), plus VAT at the applicable rate. Unless otherwise agreed, the prices for deliveries within Germany shall be deemed to include delivery (but not unloading) to any destination within the territorial borders of the Federal Republic of Germany, and shall include packaging. The prices for deliveries to countries outside Germany shall be set forth in the respective offers and order confirmations issued by the Seller. Double Glazed Units for fire resistant glazing is insured for transportation, however other products are not insured. Unless otherwise agreed, the Purchaser is responsible for unloading the goods at the designated place of delivery. The Purchaser shall bear the costs of any urgent, express or bulky deliveries, delivery by truck with special unloading devices or the use of cranes or stackers for unloading. The date of delivery shall be the date upon which the goods leave the Seller's factory or warehouse. Goods may be personally collected by the Purchaser during the Seller's business hours if agreed in advance. If goods are personally collected, the Purchaser shall not receive any reimbursement for freight costs.
1.2 Invoices are generally due and payable upon receipt, with no discounts being granted for early payment. Cash discounts and extended payment deadlines must be agreed separately.
1.3 If payment deadlines are not met, this will automatically give rise to all of the statutory consequences of default, without any special reminder being required. In particular, the Seller reserves the right to charge interest at the applicable rate charged by his bank if such interest exceeds the interest rate prescribed by statute (8% above the reference interest rate). Furthermore, the entire balance shall become due and payable immediately, irrespective of any payment targets.
1.4 In the case of custom-made products, the Seller reserves the right to increase the price by a reasonable amount.
1.5 Offers are always subject to change. Order confirmations shall be deemed binding unless objected to in writing within two working days of receipt of the order confirmation. Allowance may be made for any requests for modifications received by the Seller after this time, provided that an individual agreement is reached in this regard and the Purchaser accepts responsibility for the costs already incurred by the Seller.
1.6 The Seller is prepared to hold the goods until the Purchaser requests delivery, but such an arrangement must be recorded in a separate written agreement. The Seller reserves the right to invoice the Purchaser for all of the goods to be delivered after the expiry of 28 calendar days since the agreed date for completion of the goods, and also for the costs incurred by the Seller in connection with holding the goods.
2. Delivery Dates, Force Majeure
2.1 Seller will endeavour to adhere to stipulated delivery deadlines. However, due to the hazards and peculiar features of glass processing, delivery deadlines will not be binding unless expressly agreed otherwise.
2.2 Seller’s contractual obligations are subject to his suppliers delivering the correct products to Seller on time.
2.3 The occurrence of extraordinary and unforeseeable events (fire, explosion, lightning strikes, orders issued by government authorities or the failure of government authorities to act, strikes, lock-outs, labour disputes, damage to machinery, cancelled deliveries of raw materials or components necessary for manufacturing the goods, war, riots, inability to procure a means of transport and transport delays) and all events outside the Seller's control shall release the Seller from its obligations for the period of the delay caused by the event or, in the case of impossibility, from its obligation to deliver the goods.
3. Refusal to accept delivery
Where the Purchaser refuses to accept delivery of the goods without justification, the Purchaser shall bear the costs and damage associated with such refusal, particularly transport costs, transport risks, the costs of preparing an expert's report, travel costs etc.
4. Place of Performance and Passing of Risk
4.1 The place of performance for the delivery is the principal place of business of Seller’s respective supplying factory. The place of performance for payment is Jena.
4.2 When goods are transported, the risk (of accidental loss, destruction or deterioration) (the "Risk") shall pass to the Purchaser as soon as Seller has delivered the goods to the carrier chosen by Seller.
5. Packaging
Unless otherwise agreed, Seller will accept the return of packaging to the extent that Seller is obliged to do so under the German Packaging Regulation (Verpackungsverordnung).
6. Warranties in respect of material defects, notification of defects and duties of Purchaser
6.1 If the Purchaser has complaints about the goods despite the utmost care having been exercised by the Seller, then in accordance with § 377 of the German Commercial Code (Handelsgesetzbuch, or "HGB"), patent defects must be reported in writing without delay, but by no later than five days after receipt of the goods, and in all cases prior to the processing or installation of the goods, and latent defects must be reported in writing without delay after they are discovered, otherwise the goods will be deemed accepted. The Purchaser must notify the Seller in writing without delay, but no later than 2 working days after receipt of the goods and in all cases prior to processing or installing the goods, of any damage caused during transportation. After the discovery of a defect in the glass panes supplied, the Purchaser must refrain from any further processing, installation or other use of the panes, otherwise the Seller will be exempted from any and all liability for damage caused as a result of non-compliance with this provision.
6.2 The Seller shall be generally entitled to obtain an expert's opinion on any products that the Purchaser has complained about. The Seller's consent must be obtained before the goods are returned to the Seller or any other action is taken with respect to the goods.
6.3 Claims on the basis of defects as to quality ("material defects") shall become statute-barred 12 months after delivery of Seller’s goods to the Purchaser. The foregoing provisions shall not apply to the extent that longer limitation periods are prescribed by statute pursuant to §438(1) No. 2 of the German Civil Code (Bürgerliches Gesetzbuch, or "BGB" - Physical Structures and Physical Objects used for Physical Structures), §479 (1) BGB (Recourse Claim), and §634a (1) BGB (Construction Defects). A separate written agreement is required between the Purchaser and the Seller if the Purchaser would like a five-year warranty (calculated from the date of delivery to the Purchaser) guaranteeing that, if the unit is used properly, the transparency of the interior surface facing the air gap of the Double Glazed Units unit supplied for fire resistant glazing will not be adversely affected by the build-up of condensation or dust deposits in the air gap. The processing and potential acknowledgement of complaints and claims for breach of warranty is preconditioned upon the proper use of the products in building construction and compliance with the relevant installation and cleaning requirements.
6.4 If, despite all care being taken at Seller’s premises, the delivered goods contain a defect that already existed at the time that the Risk passed, then Seller will, at his election and subject to receiving notification of the defect within the required time, repair the goods or deliver substitute goods. Seller must always be given the opportunity to render subsequent performance within a reasonable time.
6.5 If subsequent performance cannot be rendered, the Purchaser may – notwithstanding any claims for compensatory damages – rescind the agreement or reduce the contractual fee. The Purchaser may not demand compensation for expenses incurred in vain.
6.6 The following shall not give rise to any claims based on defects: merely immaterial deviations from the agreed condition of the goods, merely immaterial impairments to their utility, natural wear and tear, or loss or damage that arises after the risk has passed as a result of incorrect or careless treatment, overuse, unsuitable operating resources, defective building work, unsuitable building foundations or special external influences that are not requirements under the contract. In addition, if the Purchaser or a third party improperly (in a non-workmanlike manner) carries out maintenance work or modifications, then no claims based on defects may be made in respect of such work or modifications or the resulting consequences.
6.7 Claims on the part of the Purchaser for expenses necessary to enable subsequent performance, particularly transport, infrastructure (e.g., tolls) and labour costs and the cost of materials, are excluded to the extent that such expenses are higher because the goods delivered by Seller were subsequently taken to a location other than the Purchaser's business premises, unless such transportation is consistent with the authorised use of the goods.
6.8 Any recourse claims on the part of the Purchaser against Seller shall exist only to the extent that the Purchaser has not entered into any agreements with its Purchasers going beyond the mandatory statutory claims based on defects. Item 6.6 shall apply mutatis mutandis to the scope of the Purchaser's recourse claim against the Seller.
6.9 Claims based on material defects on the part of the Purchaser against Seller or Seller’s vicarious agents that go beyond or are not included in the claims governed by Item 6 are excluded.
6.10 The provisions of Item 8 shall otherwise apply to any other claims on the part of the Purchaser for compensatory damages or the reimbursement of costs.
6.11 If, within the meaning of § 444 BGB, a defect is fraudulently concealed or a warranty is given with respect to the condition of the goods as at the time the risk passes (Seller's representation that the subject matter of the sale has a particular characteristic at the time the Risk passes and that the seller wishes to be held responsible for all consequences flowing from the fact that the characteristic is absent, regardless of fault), the Purchaser's rights shall be exclusively governed by the statutory provisions. Unless expressly agreed otherwise in writing, the Seller gives no warranties as defined by § 443 (1) and (2) BGB (warranty as to condition/quality and durability). Any references to a specification or any other condition/quality specifications and DIN (Deutsche Industrienorm – German Industry Standard) standards shall not constitute a warranty within the meaning of § 443 (1) and (2) BGB.
6.12 Fire resistant glazings may only be carried out by companies with experience in this area and with adequately trained personnel. Therefore, the Purchaser must ensure that the goods supplied by the Seller are used exclusively in accordance with the relevant statutory provisions, particularly in accordance with any binding general licences issued by a construction supervisory authority or any consent granted in the individual case. Modifications to the panes by trimming, sawing, drilling or grinding, or any other mechanical or chemical processing including manipulation of and modifications to the panes delivered by the Seller lessen their fire resistant quality and are therefore not permitted. If the Purchaser carries out any such modifications, the Seller shall be exempted from any and all liability and claims for breach of warranty. The Purchaser must consult with the Seller in all cases where there is uncertainty with respect to technical information, the use of the goods supplied by the Seller in fire resistant glazings, the technical capabilities of the products, additional functions and measurements.
7. Industrial Property Rights and Copyright; Title Defects
7.1 Unless otherwise agreed, Seller has an obligation (although such obligation exists only in the country in which the place of delivery is located) to deliver the goods free from the industrial property rights and copyrights of third parties (hereinafter referred to as "Proprietary Rights"). In the event that a third party makes legitimate claims against the Purchaser for infringement of Proprietary Rights based on the goods delivered by the Seller and used in accordance with the contract, Seller shall be liable to the Purchaser within the period specified in Item 6.3 above as follows:
a) At Seller’s election and at Seller’s own expense, Seller will either secure a licence for the goods concerned, modify them so that the Proprietary Right is not infringed, or exchange them. If Seller is unable to do any of the above on reasonable terms, then the Purchaser shall be entitled to the statutory rights of rescission and reduction of the contract price. The Purchaser may not demand compensation for expenses incurred in vain.
b) The provisions of Item 8 shall apply to any claims for compensatory damages.
c) Seller’s obligations as described above shall exist only on the condition that the Purchaser notifies Seller in writing without delay of the claims asserted by the third party, the Purchaser does not admit to the infringement and leaves in Seller’s hands any defence of the claims and settlement negotiations. If the Purchaser discontinues using the delivered goods in order to mitigate loss or for any other good reason, then the Purchaser shall bring to the attention of the third party the fact that discontinuing use of the goods in no way constitutes an admission of an infringement of Proprietary Rights.
7.2 Claims on the part of the Purchaser are excluded if the Purchaser is responsible for the infringement of Proprietary Rights.
7.3 Claims on the part of the Purchaser shall be further excluded if the infringement of Proprietary Rights is a result of special instructions issued by the Purchaser, an application or use of the goods that was not foreseeable by Seller, or as a result of the Purchaser modifying the goods or using them together with goods not delivered by Seller.
7.4 In the event of an infringement of Proprietary Rights, the provisions set forth under Items 6.5 and 6.10 shall otherwise apply mutatis mutandis to the Purchaser's claims governed by Item 7.1a).
7.5 If other title defects exist, then the provisions of Item 6 shall apply mutatis mutandis.
7.6 Claims based on title defects on the part of the Purchaser against Seller or Seller’s vicarious agents that go beyond or are not included in the claims governed by Item 7 are excluded.
7.7 If, within the meaning of § 444 BGB, a defect is fraudulently concealed or a warranty is given with respect to the condition of the goods as at the time the risk passes (Seller's representation that the subject matter of the sale has a particular characteristic at the time the Risk passes and that the Seller wishes to be held responsible for all consequences flowing from the fact that the characteristic is absent, regardless of fault), the Purchaser's rights shall be exclusively governed by the statutory provisions.
8. Other Claims for Compensatory Damages
8.1 In the event of a breach of a pre-contractual, contractual and/or non-contractual obligation, including unsatisfactory delivery, tortious conduct and manufacturer's liability, Seller shall be liable for compensatory damages and the reimbursement of costs – subject to further contractual or statutory liability requirements – only in the case of wilful conduct, gross negligence or breach of a material contractual duty ("condition") (contractual duty, the infringement of which jeopardises the ultimate purpose of the contract) where such breach was due to ordinary negligence. However, except in the case of wilful conduct, Seller’s liability shall be limited to typical contractual loss or damage that was foreseeable at the time the contract was entered into. The Purchaser is not permitted to make a claim for expenses incurred in vain.
8.2 For loss or damage caused by delay due to ordinary negligence, Seller shall be liable for up to only 5% of the purchase price agreed with Seller.
8.3 Except in the case of breach of a condition, liability for ordinary negligence is excluded. This shall not affect Item 8.2.
8.4 The exclusions and limitations of liability set forth under Items 8.1 to 8.3 shall not apply in the event that a warranty is given with respect to the condition of the goods within the meaning of §444 BGB, a defect is fraudulently concealed, or in the event of injury to life, physical injury or injury to health, or strict liability under the German Product Liability Act (Produkthaftungsgesetz).
9. Non-binding Nature of Drawings, Diagrams, Measurements and Weights
Drawings, diagrams, measurements and weights are approximate only, unless they are expressly stipulated to be binding. The Purchaser must guarantee that working drawings (construction diagrams) supplied by it do not infringe the Proprietary Rights of third parties. The Purchaser must hold Seller harmless in the event that rights of recourse are asserted.
10. Documents
Documents supplied by Seller may not be copied or made available to third parties, or used for any purpose other than the agreed purpose. Third parties within the meaning of this provision do not include companies in which the Purchaser or the Seller or their respective parent companies have a direct or indirect interest of more than 50%.
11. Reservation of Title
11.1 The Seller shall retain title to the goods until all of Seller’s claims, including claims arising in the future, are fully paid. The Purchaser may process and sell the goods in accordance with the following conditions:
If the goods are further processed or remodelled by the Purchaser, then Seller shall be deemed the manufacturer within the meaning of §950 BGB and shall acquire title to the intermediate or final products. The processor shall be merely the custodian.
If the goods subject to the reservation of title ("reserved goods") are mixed or processed with other property not belonging to the Seller, then the Seller shall acquire a co-ownership interest in the new item proportionate to the value of the reserved goods to the other property.
11.2 The goods may be sold only in the normal and ordinary course of business and only if claims deriving from their resale are not assigned to third parties beforehand. The Purchaser's claims deriving from resale of the goods shall, upon execution of the purchase agreement between the Seller and the Purchaser, be deemed assigned to Seller to the extent that the Seller’s goods are mixed or inter-processed with other property. In such a case, the assigned claims shall serve as the Seller’s security only up to the value of the reserved goods sold in each case. The Seller will not collect on the assigned claims for as long as the Purchaser complies with its payment obligations. However, the Purchaser has an obligation to disclose to the Seller the identity of the third party debtor at our request and to notify such debtor of the assignment. The Purchaser may collect on the claims itself unless and until it receives instructions (to the contrary) from the Seller. The Purchaser must immediately transfer the amounts collected by it to the extent that Seller’s claims are due.
11.3 Pledges or the granting of security interests in the reserved goods or the assigned claims are not permitted. The Purchaser must inform Seller immediately of any action by third parties affecting the goods delivered subject to a reservation of title or the assigned claims. The Seller agrees to release the assigned claims at Seller’s election if they exceed the value of Seller’s claims to be secured by more than 20% and are derived from fully paid goods.
11.4 In the event of breach of duty by the Purchaser, particularly in the case of default on payment, the Seller is entitled to rescind the agreement and recover the goods. The Purchaser has an obligation to deliver up the goods. It is not necessary for the Seller to rescind the agreement in order to recover the goods or enforce a reservation of title. Such actions or any pledge of the reserved goods by the Seller shall not constitute rescission of the agreement unless expressly declared by the Seller.
11.5 If, in the case of non-domestic sales, the reservation of title agreed under Item 11 is not permitted with the same effect as under German law, then Seller shall retain title to the goods until payment of all of Seller’s claims arising out of the contractual relationship formed through the sale of the goods. If the foregoing reservation of title is not permitted with the same effect as under German law either, but it is permissible to reserve other rights in respect of the goods, then Seller is authorised to exercise all of these rights. The Purchaser shall cooperate in all actions the Seller may wish to take in order to protect Seller’s ownership interest or alternative right in the goods.
12. Applicable Law and Judicial Forum
12.1 With the exception of choice of law rules under German private international law and the provisions of the UN Convention on Contracts for the International Sale of Goods ("UN-CISG"), the substantive law of the Federal Republic of Germany shall apply to all legal relationships and transactions established by this purchase agreement.
11.2 The judicial forum for both parties, including for bill of exchange matters, is Jena. If the Seller becomes the plaintiff in litigation, then Seller is also entitled to bring an action in the jurisdiction of the Purchaser's principal place of business (registered office).
SCHOTT Technical Glass Solutions GmbH
