M.E.SCHUPP Industriekeramik GmbH & Co. KG,
Status: 1st January 2012
These General Terms and Conditions apply to all contracts, deliveries, and other services, including consulting services, of M. E. Schupp Industriekeramik GmbH & Co. KG (hereinafter, "Schupp"). Terms and conditions of the customer that deviate from these General Terms and Conditions, as well as side agreements or changes to these General Terms and Conditions, are valid only if same have been expressly confirmed by Schupp in writing.
2.1 Unless expressly designated as binding, the offers contained in our catalogues and sales documentation, as well as those on our website, are always non-binding and subject to change, i.e. are considered to be only a request to make an offer. Orders become binding on us only after they have been confirmed by us in writing or once the service has been rendered.
2.2 Additional terms and conditions, including those of a technical nature, in particular, dimensions and their calculation, pricing, crate or package contents, packaging, freight costs, etc., may result from supplemental terms and conditions of delivery and price lists. To the extent that no information is contained there and no special agreements have been made, customary business practices are applicable.
2.3 If the customer subsequently desires to change or cancel the order, this can be done only on the basis of special agreement and only if manufacture, customization, or processing has not yet begun. In any case, this requires Schupp’s written consent in order to be effective.
2.4 Images, drawings, calculations, and assembly and other documentation remain the property of Schupp and may neither be duplicated nor disclosed to third parties without the consent of Schupp. Schupp is solely entitled to exploit the copyrights concerning offer documentation.
3.1 Unless we give a commitment that is expressly designated as binding, delivery periods are considered to be approximate only. The delivery period begins to run on the date on which all of the order’s technical and other details have been clarified, any necessary documentation has been submitted, and the agreed deposit, if any, has been paid. The delivery period is extended by the time in which the customer is in default with its contractual obligations – including, in the event of an ongoing business relationship, under other contracts.
3.2 Partial performance and partial deliveries are permissible to a reasonable extent. Schupp may invoice instalment payments to a reasonable extent.
3.3 An implementation or delivery period is reasonably extended – including during default – in the case of force majeure or any unforeseeable obstacles arising after conclusion of contract for which Schupp is not responsible (in particular, interruption of operations, strikes, lock-outs, or disruption of transportation networks), provided such obstacles have a major impact on the planned implementation or delivery. This also applies if such circumstances occur with upstream suppliers or subcontractors. We will give the customer earliest possible notice of the start and end of such obstacles. The customer may demand that we declare whether we intend to rescind or instead to deliver within a reasonable period. If we fail to make a prompt declaration, the customer may rescind. Claims for damages are precluded in such cases.
3.4 In the event of a delay in delivery, the customer is obligated, at our request and within a reasonable period, to declare whether it continues to insist upon delivery or instead rescinds the contract due to the delay and/or claims damages in lieu of performance.
4.1 Unless agreed otherwise in a given case, Schupp is free to decide on manner and means of shipment. Packaging is not done on an individual basis but rather solely according to shipment, production, and environmental considerations. The largest dimension of the unit always determines the packaging size.
4.2 Deliveries are ex warehouse or ex works. Risk passes to the customer once the goods have been handed over to the shipping company – regardless of whether same has been engaged by the customer, the manufacturer, or Schupp. This same applies to partial deliveries and to deliveries where freight is paid by Schupp.
4.3 If shipment is delayed at the request of, or at the fault of, the customer, the goods are stored at the customer’s risk and expense. In such case, notice of readiness for shipment is equivalent to shipment. In the event of storage, the invoice for the goods becomes immediately due and payable.
4.4 If shipment occurs with the customer’s vehicle or a third-party vehicle, the goods are deemed handed over, at the latest, once they have been made available to the recipient in front of the delivery location on a firm roadway surface and on the vehicle. If, in the opinion of the deliverer, the access roadway is not navigable, the goods are handed over where flawless entry and exit by the vehicle is assured.
5.1 Prices are net of packaging and freight and other shipping costs, as well as value-added tax.
5.2 Offers by Schupp are based on the customer’s description of services. Our pricing assumes that the positions underlying the offer information remain unchanged, any required preliminary work has been completed, and we can render our services all at once, without restriction.
5.3 If the delivery or service is to take place four months or more after conclusion of contract, the parties undertake to renegotiate the price in the event that costs change, in particular, for materials and wages.
5.4 We are entitled to demand instalment payments if our performance is delayed at no fault of our own beyond the agreed period.
5.5 Unless agreed otherwise, our deliveries and services are immediately due and payable. Payments are always used to settle the oldest due and payable liabilities, plus accrued interest. Discounts are not granted for early payment if the customer is in default in the payment of earlier deliveries.
5.6 If the customer is in default in payment, we are entitled to reclaim the corresponding number of goods, to enter the customer’s facility, if necessary, and to remove the goods. In addition, we can prohibit the sale or relocation of the delivered goods. Reclaiming the goods does not constitute rescission of contract.
5.7 Default interest amounts to 10% p.a. over the base interest rate (Section 247 of the German Civil Code [Bürgerliches Gesetzbuch, BGB]). Interest is to be adjusted upward or downward if Schupp demonstrates a higher interest rate or the customer demonstrates a lower interest rate.
5.8 Refusal to pay due to a defect is precluded if the customer was aware of the defect or other reason for objection. This also applies in the event that it remained unaware of the defect due to gross negligence, unless Schupp fraudulently concealed the defect or other reason for objection or gave a warranty as to the qualities of the item. Set-off is permissible only for such counterclaims as are uncontested or have been reduced to an enforceable judgment. A right of retention from earlier or other transactions under the ongoing business relationship cannot be asserted. In all other respects, payment can be withheld only to a reasonable extent for defects and other objections.
5.9 We can redeem any provision of collateral agreed to with a guarantee for the net amount.
6.1 We retain title to the goods until payment in full of the purchase price. With regard to goods purchased from us by the customer under an ongoing business relationship, we retain title until payment of all of our claims under the business relationship, including claims arising in the future, also under contracts concluded simultaneously or subsequently. This also applies where we aggregate individual or all claims into a single outstanding account that offsets all payments and receivables, subject to acknowledgment by the customer. In the event the customer is in default in payment, we are entitled, after issuing a warning, to reclaim the goods, and the customer is obligated to surrender them.
6.2 If the goods subject to retention of title are connected by the customer with other goods, we are entitled to coownership of the new item in proportion to the invoice value of the other goods and the processing value. If our title is extinguished due to combination, mixing, or processing, the customer must, at the time of conclusion of contract, assign to us its ownership rights in and to the new item to the extent of the invoice value of the goods subject to retention of title and to safeguard them for us at no charge. The ownership rights arising hereby are considered to be goods subject to retention of title pursuant to Section.
6.3 The customer shall promptly notify us of any third-party claims against the goods subject to retention of title and the assigned claims. It may sell the goods subject to retention of title only in the normal course of business, under its normal business terms and conditions, and only as long as it is not in default, provided that the claims from the resale are to be assigned to us pursuant to Section 6.4-6.5, below. It is not entitled to make any other dispositions of the goods subject to retention of title.
6.4 The customer’s claims from the resale of goods subject to retention of title are hereby assigned to us. We hereby accept such assignment. They serve as collateral to the same extent as the goods subject to retention of title. The same applies to the claim to the granting of a recordable security interest (Sicherungshypothek) pursuant to Section 648 BGB. If the goods subject to retention of title are sold by the customer together with other goods not supplied by Schupp, the claim from the resale is assigned in the relation of the invoice value of our goods to the other sold goods. In the event goods are sold in which we have a coownership share pursuant to Section 6.2, we are to be assigned a portion corresponding to our ownership share.
6.5 At our request, the customer is obligated to immediately notify its buyers of the assignment to us and to provide us with the information and documentation necessary for collection, including, where appropriate, the names and addresses of debtors. The customer is in no event entitled to assign the claims further. The customer is entitled to make an assignment by way of true factoring only if this is notified by disclosing the factoring bank and the customer’s accounts maintained there and if the factoring proceeds exceed the value of oursecured claim. When the factoring proceeds are credited, our claims become immediately due and payable.
6.6 If reference is made to the value of the goods subject to retention of title, this is based on our invoiced amount. At the customer’s request, we undertake to release the collateral to which we are entitled to the extent that its realisable value exceeds the claims to be secured by 30%.
7.1 For defects within the scope of Section 434 BGB, we are liable only as follows: Due to the special features of our goods and the risk of damage, the customer is obligated to inspect them promptly. Written notice must be given of all obvious and/or ascertained defects, deficient amounts, and wrong deliveries not later than within one week of delivery, in any case prior to processing or installation. The foregoing does not affect farther-reaching merchant obligations pursuant to Section 377 of the German Commercial Code (Handelsgesetzbuch, HGB). Deviations in sizes, contents, thicknesses, weights, and colour shades occasioned by manufacture are permissible within the tolerances customary in the industry, unless a warranty as to qualities was given pursuant to Section 443 BGB.
7.2 If the customer determines that the goods are defective, it may not make any disposition of them – i.e. they may not be divided, resold, or processed – until agreement is reached as to how the complaint is to be handled.
7.3 The customer is obligated to give us the opportunity to ascertain the claimed defect on site or, upon request, to make available the item or sample objected to; in the event of culpable refusal, Schupp is not liable for the defect.
7.4 The physical qualities of our products are not subject to complaint but instead are applicable pursuant to the technical data sheets.
7.5 We are not liable for damages that are attributable to inappropriate or improper use, to faulty assembly, initial operation, change, or repair not performed by us, or to negligent handling or normal wear and tear.
7.6 The efforts required to cure the defect, in particular transport and travel costs, are not to be borne by us to the extent that they are based on the fact that the purchased item was, following delivery, moved to a location other than the location of the recipient’s professional activity or commercial establishment, unless such relocation corresponds to the proper use of the item apparent to Schupp. Recourse claims pursuant to Sections 478-479 BGB remain unaffected.
7.7 Recourse claims pursuant to Sections 478-479 BGB exist only if the customer was entitled to assert them – not, however, for goodwill clams – and only to the statutory extent. In addition, they require that the party entitled to recourse claims comply with its own obligations, in particular, compliance with obligations to give notice of objection.
7.8 All claims for defects become statute barred after 12 months.
7.9 Claims for damages are covered by Section 8 (Other liability).
Unless provided otherwise in these General Terms and Conditions, Schupp pays damages for contractual and extra-contractual liability solely pursuant to the following provisions: Schupp is fully liable in the event of wilful misconduct and for the absence of a quality for which Schupp has given a guarantee. In the event of gross negligence, Schupp is liable only to the extent of the foreseeable damage that should have been prevented by the obligation breached. In other cases, Schupp is liable only for the breach of a material contractual obligation, if this endangers the contract purpose, but in any event only to the extent of the foreseeable damage, up to an amount of € 200,000 per event of damage, with a maximum of € 500,000 for each concluded contract. The aforementioned limitations of liability are not applicable to liability for personal injuries or to liability under applicable product liability laws. Section 7.8 applies mutatis mutandis for prescription, with the stipulation that the statutory prescription period applies to claims arising from wilful liability, absence of a warranty for qualities, and in the case of liability for personal injuries or under applicable product liability laws.
The customer is hereby notified that we process personal data acquired in connection with the business relationship pursuant to the provisions of the German Federal Data Protection Act (Bundesdatenschutzgesetz).
10.1 The registered office of our company in Aachen is the place of performance and sole place of jurisdiction for deliveries and payments, as well as all disputes that may arise, insofar as the customer is a merchant, a legal person under public law, or a special fund under public law. However, we are entitled to bring an action against the customer at its place of jurisdiction.
10.2 If one or more provisions should be ineffective, all other provisions remain in full force and effect.
10.3 The contractual relationships are governed by the law applicable in the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.