|
|
Terms and Conditions for Delivery and Payment
Terms and Conditions for Delivery and Payment
|
The following terms and conditions for delivery and payment shall govern all deliveries and services. Any conflicting purchasing terms and conditions of the Customer are hereby expressly rejected. Any such purchasing terms and conditions shall apply only if we expressly confirm them in writing. Acceptance of the delivered goods shall be deemed acknowledgement of our terms and conditions.
1. Prices/Terms and Conditions of Payment
1.1. We calculate the applicable prices on the date of delivery,
such prices being in EURO (EUR) unless otherwise stipulated, plus
an additional amount for VAT as applicable from time to time.
Unless special terms are agreed, the prices should be understood
to be prices ex works, with no deduction or discount being granted
for immediate payment.
1.2 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,
we reserve the right to charge interest at the applicable
rate charged by our 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.
1.3 In the case of custom-made products, we reserve the
right to increase the price by a reasonable amount and
to deviate to a reasonable extent from the agreed quantity.
The Customer must take delivery of surplus quantities.
In respect of pressed pieces (Preßlinge) and glass feed-through
headers (Glasdurchführungen), a variation of +/-10% in relation
to the ordered quantity shall be deemed agreed.
2. Delivery Dates
We 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.
Our contractual obligations are subject to our supplier
delivering the correct products to us on time.
3. Place of Performance and Passing of Risk
3.1 The place of performance for the delivery is the
principal place of business of our respective supplying
factory. The place of performance for payment is our
principal place of business.
3.2 When goods are transported, the risk (of accidental
loss, destruction or deterioration) (the "Risk") shall
pass to the Customer as soon as we have delivered the
goods to the carrier chosen by us.
4. Packaging
Unless otherwise agreed, we will accept the return of packaging
to the extent that we are obliged to do so under the German
Packaging Regulation (Verpackungsverordnung).
5. Warranties in Respect of Material Defects and
Notification of Defects
5.1 If, despite the greatest of care being taken, the
goods give rise to complaints, then, in accordance with
§377 of the German Commercial Code (Handelsgesetzbuch, or
"HGB"), obvious defects must be notified without delay, in
any case no later than 14 days after receipt of the goods,
and hidden defects must be notified without delay after
their discovery, otherwise the goods shall be deemed accepted.
5.2 Claims on the basis of defects as to quality ("material
defects") shall become statute-barred 12 months after delivery
of our goods to our Customer. 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).
Our consent must be obtained before any goods are returned.
5.3 If, despite all care being taken at our premises, the
delivered goods contain a defect that already existed at the
time that the Risk passed, then we will, at our election and
subject to receiving notification of the defect within the
required time, repair the goods or deliver substitute goods.
We must always be given the opportunity to render subsequent
performance within a reasonable time.
5.4 If subsequent performance cannot be rendered, the
Customer may – notwithstanding any claims for
compensatory damages – rescind the agreement or
reduce the contractual fee. The Customer may not
demand compensation for expenses incurred in vain.
5.5 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
Customer 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.
5.6 Claims on the part of the Customer 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 us were subsequently taken to a
location other than the Customer's business premises,
unless such transportation is consistent with the
authorised use of the goods.
5.7 Any recourse claims on the part of the Customer against
us shall exist only to the extent that the Customer has
not entered into any agreements with its customers
going beyond the mandatory statutory claims based on
defects. Item 5.6 shall apply mutatis mutandis to the
scope of the Customer's recourse claim against the
supplier.
5.8 Claims based on material defects on the part of the
Customer against us or our vicarious agents that go
beyond or are not included in the claims governed by
Item 5 are excluded.
5.9 The provisions of Item 7 shall otherwise apply to any
other claims on the part of the Customer for
compensatory damages or the reimbursement of costs.
5.10 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 Customer's rights shall be exclusively governed by
the statutory provisions.
6. Industrial Property Rights and Copyright;
Title Defects
6.1 Unless otherwise agreed, we have 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 Customer for
infringement of Proprietary Rights based on the goods
delivered by the supplier and used in accordance with
the contract, we shall be liable to the Customer within
the period specified in Item 5.1 above as follows:
a) At our election and at our own expense, we will
either secure a licence for the goods concerned,
modify them so that the Proprietary Right is not
infringed, or exchange them. If we are unable to do
any of the above on reasonable terms, then the
Customer shall be entitled to the statutory rights of
rescission and reduction of the contract price. The
Customer may not demand compensation for
expenses incurred in vain.
b) The provisions of Item 7 shall apply to any claims for
compensatory damages.
c) Our obligations as described above shall exist only
on the condition that the Customer notifies us in
writing without delay of the claims asserted by the
third party, the Customer does not admit to the
infringement and leaves in our hands any defence of
the claims and settlement negotiations. If the
Customer discontinues using the delivered goods in
order to mitigate loss or for any other good reason,
then the Customer 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.
6.2Claims on the part of the Customer are excluded if the
Customer is responsible for the infringement of
Proprietary Rights.
6.3 Claims on the part of the Customer shall be further
excluded if the infringement of Proprietary Rights is a
result of special instructions issued by the Customer, an
application or use of the goods that was not foreseeable
by us, or as a result of the Customer modifying the
goods or using them together with goods not delivered
by us.
6.4 In the event of an infringement of Proprietary Rights, the
provisions set forth under Items 5.3 and 5.7 shall
otherwise apply mutatis mutandis to the Customer's
claims governed by Item 6.1a).
6.5 If other title defects exist, then the provisions of Item 5
shall apply mutatis mutandis.
6.6 Claims based on title defects on the part of the
Customer against us or our vicarious agents that go
beyond or are not included in the claims governed by
Item 6 are excluded.
6.7 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 Customer's rights shall be exclusively governed by
the statutory provisions.
7. Other Claims for Compensatory Damages
7.1 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, we
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,
our liability shall be limited to typical contractual loss or
damage that was foreseeable at the time the contract was
entered into. The Customer is not permitted to make a
claim for expenses incurred in vain.
7.2 For loss or damage caused by delay due to ordinary
negligence, we shall be liable for up to only 5% of the
purchase price agreed with us.
7.3 Except in the case of breach of a condition, liability for
ordinary negligence is excluded. This shall not affect
Item 7.2.
7.4 The exclusions and limitations of liability set forth under
Items 7.1 to 7.3 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).
8. 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 Customer must guarantee that working
drawings (construction diagrams) supplied by it do not
infringe the Proprietary Rights of third parties. The
Customer must hold us harmless in the event that rights
of recourse are asserted.
9.Documents
Documents supplied by us may not be copied or made
available to third parties, or used for any purpose other
than the agreed purpose.
10.Reservation of Title
10.1 We shall retain title to the goods until all of our claims,
including claims arising in the future, are fully paid. The
Customer may process and sell the goods in accordance
with the following conditions:
If the goods are further processed or remodelled by the
Customer, then we shall be deemed the manufacturer the
within the meaning of §950 BGB and shall acquire title to the
the intermediate or final products. The processor shall the
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 us, then we shall acquire a co-ownership
interest in the new item proportionate to the value of the
reserved goods to the other property.
10.2 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
Customer's claims deriving from resale of the goods
shall, upon execution of the purchase agreement
between us and the Customer, be deemed assigned to
us to the extent that our goods are mixed or inter-
processed with other property. In such a case, the
assigned claims shall serve as our security only up to
the value of the reserved goods sold in each case. We
will not collect on the assigned claims for as long as the
Customer complies with its payment obligations.
However, the Customer has an obligation to disclose to
us the identity of the third party debtor at our request and
to notify such debtor of the assignment. The Customer
may collect on the claims itself unless and until it
receives instructions (to the contrary) from us. The
Customer must immediately transfer the amounts
collected by it to the extent that our claims are due.
10.3 Pledges or the granting of security interests in the
reserved goods or the assigned claims are not
permitted. The Customer must inform us immediately of
any action by third parties affecting the goods delivered
subject to a reservation of title or the assigned claims.
We agree to release the assigned claims at our election
if they exceed the value of our claims to be secured by
more than 20% and are derived from fully paid goods.
10.4 In the event of breach of duty by the Customer,
particularly in the case of default on payment, we are
entitled to rescind the agreement and recover the goods.
The Customer has an obligation to deliver up the goods.
It is not necessary for us 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 us shall not constitute rescission of the agreement
unless expressly declared by us.
10.5 If, in the case of non-domestic sales, the reservation of
title agreed under Item 10 is not permitted with the same
effect as under German law, then we shall retain title to
the goods until payment of all of our 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 we are authorised to exercise
all of these rights. The Customer shall cooperate in all
actions we may wish to take in order to protect our
ownership interest or alternative right in the goods.
11. Applicable Law and Judicial Forum
11.1 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 our principal place of business
(registered office). If we become the plaintiff in
litigation, then we are also entitled to bring an action in
the jurisdiction of the Customer's principal place of
business (registered office).
Valid from January 1, 2002
|
|
|
SCHOTT Careers
SCHOTT Careers