General Terms and Business Conditions (GTCBs)
of SCA Schucker GmbH & Co. KG, August 2009
1 Application Our GTCBs exclusively govern our deliveries, services (hereinafter referred to as "Products") and offers. The GTCBs only apply to customers who are companies. They form part of all the contracts that we may conclude regarding Products that we offer. These GTCBs apply even if not specifically referenced. If the customer or third parties have general terms and conditions of business, they shall not apply, even if we do not object to them separately. They do not become part of the contract even if the order is accepted or filled.
2 Formation of contract Our offers are non-binding unless expressly declared otherwise. Oral and phone agreements are only legally valid if we confirm them in writing.
Illustrations or information (weights, dimensions, values in use, allowable loads, tolerances, drawings, technical data, etc.) are approximate by nature, unless exact conformity is necessary for the Products to be used for the contracted purpose. Custom offers are based on information provided by the customer, without knowledge of the customer's circumstances; the customer bears the risk that the Products offered on this basis may not correspond to the customer's preferences and needs.
We only uphold contractual guarantees that we have explicitly extended in writing. Any obvious mistakes or printing, spelling, arithmetical or costing errors are not binding and do not constitute grounds for any claims.
If the order confirmation or delivery note contains changes to the customer's purchase order, the customer is deemed to have consented to them if he accepts the Products without reservation and does not object in writing forthwith.
3 Prices/payment Our list prices as they may change from time to time shall apply. Unless otherwise agreed, the prices are ex works and do not include value-added tax or additional services such as packaging, loading, freight, unloading, transport insurance, assembly, customs, installation, implementation, introduction, training, maintenance, out-of-pocket expenses, travel costs, and other expenditures.
Unless otherwise agreed, our invoices are due and payable immediately without discounts; payment is deemed to be made when our account is credited. In the case of international transactions, payment must be made with a 100 % irrevocable confirmed letter of credit; in all other cases, an advance payment of 1/3 must be made after the order confirmation has been received, and the balance must be paid upon notification that the Products are ready to ship.
A default in payment automatically voids any rebates, prompt payment discounts and other incentives which have been granted; interest amounting to 8 % above the base interest rate (German Civil Code [BGB] § 288) will also be levied.
We may exercise a right of retention over further performance in cases of default in payment and reasonable doubt as to the customer's ability to render performance. The customer may only exercise a right of retention or set-off if its claims against us are undisputed or upheld by final and absolute judgement.
4 Delivery/passage of risk The Products will be delivered and the documents prepared in accordance with Incoterms 2000.
Unless otherwise agreed upon, delivery is ex works. Partial and early deliveries are allowed as long as they are not unreasonable.
Delivery times are approximate, unless we have expressly agreed to a fixed delivery time. Delivery times begin upon receipt of the order confirmation, or once all technical and commercial questions have been resolved, whichever comes last. If the customer is in default in discharging his own cooperation obligations, including, but not limited to, procuring documents and making agreed-upon advance payments, the delivery times will be extended accordingly.
Force majeure events, requirements set by the authorities, and other circumstances for which we are not at fault (for example, strikes, difficulties in procuring materials, civil unrest, embargos, travel warnings issued by the German Federal Foreign Ministry) that render our performance or that of our suppliers impracticable or impossible other than temporarily, exempt us from our delivery obligation for the duration of their effects.
We may withdraw from the whole or part of the agreement if we cannot be reasonably expected to perform for the above reasons; this does not entitle the customer to damages. The customer will then be exempted from his obligation to render counter-performance therefore. The customer may withdraw from the contract if it can no longer be reasonably expected to accept the delivery as a result. We are not liable for impossibility or delays due to such events. We will notify the customer if such events occur.
Except in cases of wilful misconduct or gross negligence on our part, any claims for damages arising from delayed delivery are limited to no more than 0.5 % per completed week, and to a total of 5 % of the before-tax order value of the undelivered Products. Any further claims are governed exclusively by the liability provisions of these GTCBs.
If delivery is delayed at the customer's request, he will be charged for the costs incurred due to storage, starting one month after the ready-to-deliver notification is given; if the storage is effected at our plant, the costs will be at least 0.5 % of the invoice amount for each month (but no more than 5 % of the order value). If we set a reasonable deadline, but it lapses without effect, we are then entitled to otherwise dispose of the Products and render delivery to the customer within a reasonable extended deadline.
The customer is responsible for procuring all necessary permits and approvals, and complying with special regulations that apply to the customer's business or to imports and exports; the customer is still obligated to accept deliveries even if such permits and approvals are not granted.
5 Retention of title We retain title to the Products until all payments owed under the business relationship with the customer have been received, and reserve the right to revoke the grant of usage rights from the customer if the customer is more than 30 days in default of payment.
We also reserve all rights – including, but not limited to, copyrights and ownership rights – in and to all developments, specimens, models, plans, data, drawings, tangible and intangible information, and similar items released to the customer in electronic or any other form in connection with initiating or implementing the contract. They may not be copied or released to third parties.
We may require the customer to immediately restore the Products to us or, if applicable, assign his rights of restoration against third parties if the customer breaches the contract by, without limitation, defaulting on payments or filing for bankruptcy (enforcement event). The customer has no right of retention in this case. Unless we expressly state otherwise, we do not automatically withdraw from the contract when we retake our Products and/or assert our retention of title.
The following applies while we retain title:
- The customer has a revocable right to sell the Products in the ordinary course of business, provided the customer is not in default. The Products may not be pledged or assigned as security.
- The customer now hereby assigns to us as security all claims arising from the resale of the Products, in lieu of the Products, or otherwise in respect of the Products (e. g. insurance, tort), including all ancillary rights.
- The customer has a revocable right to collect claims assigned to us in its own name and for our account. Our right to collect the claims ourselves remains unaffected thereby. We have the right of disclosure.
- If third parties attempt to attach the Products by means of, inter alia, seizure or other enforcement measures, the customer will inform the third parties of our ownership interest and notify us forthwith. The customer will reimburse us for the costs of our intervention if we cannot recover the costs from third parties.
6 Defects The customer must carefully inspect the Products without unreasonable delay upon receipt. We must be notified of any defects in writing without unreasonable delay ("notice of defects"). Damages sustained in transit must be documented vis-à-vis the carrier. If no notice is given, the Products are deemed to be approved, unless the defects were not evident during the inspection. Written notice of such defects must be given without undue delay after discovering them. This does not apply if the defect was concealed with intent to deceive. Using allegedly defective Products without our written consent is deemed approval of the Products as defect-free.
In negotiating about notices of defects, we do not waive the defense that the notice was late, factually unsubstantiated or otherwise insufficient. Damage reduction measures do not constitute an acknowledgement of defects.
We are entitled to deviate from the stipulated quality or quantity standards due to irregularities in materials, or to adapt our Products to technical progress in terms of construction, design, dimensions, and color within the customary industry tolerances, provided (a) this does not restrict the usability of our Products for the contracted purpose, (b) no contractual guarantee exists, and (c) the customer can be reasonably expected to accept the adaptation(s) and/or deviation(s).
If the Products are defective, we are required to cure the defect by, at our option, repairing the defective item or replacing it with a non-defective item. We can cure defects in software by supplying a subsequent update. The customer must give us the opportunity to cure the defect within a reasonable deadline. Otherwise, we are exempt from any liability for the resulting consequences.
We assume the expenses necessary to cure the defect to the extent they have not been increased by the transportation of the Products to a location other than the place of performance.
Usual consumption and wear and tear do not constitute grounds for claims for defects. They are also excluded in the following cases: inappropriate or improper use, defective assembly or commissioning by the customer or third parties, failure to follow the processing guidelines, improper or negligent handling or storage, improper maintenance and care, unsuitable supplies, chemical, electrochemical, electrical or environmental influences. The same applies to any modifications made to the Products, replacement of parts or use of consumable materials without our prior consent that do not conform to the original specifications, unless the fault is not caused thereby.
The customer is liable for any unjustified demand to remedy defects if the defect's cause lies within the customer's area of responsibility and he acted at least negligently in failing to recognize this fact. We will bill for any expenses not attributable to us under our liability for defects in accordance with our current list prices.
Unless otherwise agreed, claims for defects will become time-barred within one year of the shipment date, unless the defect was concealed with intent to deceive or relates to a contractual guarantee as to certain characteristics.
The limitations on liability in this paragraph only apply to the extent they are consistent with the liability provisions set forth hereinafter.
7 Liability If we, our agents, servants or delegates commit a wilful or negligent breach of duty, we are liable for damages due to any resulting injury to life, limb or health as per the statutory provisions.
The following applies to all other damages inflicted by us, our agents, servants or delegates:
- In the case of damages due to a wilful or grossly negligent breach of duty, we are liable as per the statutory provisions.
- In the case of damages due to a slightly negligent breach of an immaterial contractual duty, we are not liable for damages.
- In the case of damages due to a slightly negligent breach of a material contractual duty, we are only liable for the foreseeable damages which are typical for the contract.
- In the case of a grossly negligent breach of an immaterial contractual duty, we are only liable for the foreseeable damages which are typical for the contract.
- Material contractual duties are duties (a) whose satisfaction is essential to the proper performance of the contract and (b) upon whose satisfaction the customer may reasonably rely.
Liability disclaimers and limitations do not apply to claims under the German Product Liability Act (ProdukthaftungsG) or if we have concealed a defect with the intent to deceive, extended a contractual guarantee as to certain characteristics, or damages are covered under our commercial general liability insurance.
The customer will maintain its own insurance in the scope customary for the customer’s industry (e. g. business interruption insurance). The Products may only be used in the country for which they have been ordered. The customer bears the responsibility for any re-import or re-export.
Our liability is reduced accordingly in the case of contributory fault by the customer. In particular, the customer is responsible for regularly backing up his data.
8 Liability limitation If liability is limited to the foreseeable damages which are typical for the contract, the liability will be limited to a maximum of EUR 100,000.00 per damage; all the damages for a calendar year are limited to twice this amount. We will be liable above and beyond this amount if and to the extent our insurer accepts and pays claims for the damage.
9 Intellectual property rights The customer has no claims for infringements of industrial property rights or copyrights (hereinafter: Intellectual Property Right Infringement) which can be attributed to the customer for using the Products or which are caused by the customer's special requirements, by a use which we could not foresee, or by the customer changing the Products.
If the Products were manufactured in accordance with the customer’s instructions or designs, the customer will hold us harmless from all claims asserted by third parties, particularly for Intellectual Property Right Infringements.
10 Non-disclosure The customer will keep the entire content of the contract strictly confidential, including, but not limited to, prices, discounts, know-how and other business secrets, and will refrain from disclosing or otherwise making available to third parties any information, documentation, drawings or other documents without our express consent. This does not, however, apply to content which is publicly known without violating the non-disclosure obligation. The customer will impose the same non-disclosure obligation on his employees and affiliated companies.
11 Final provisions These GTCBs also apply to companies affiliated with the customer within the meaning of German Companies Act [AktG] § 15. The customer will bind its affiliated companies to observe these GTCBs.
We may cite the customer and the project as a reference.
The customer is not entitled to assign rights granted hereunder to third parties without our consent. German Commercial Code [HGB] § 354 a remains unaffected thereby.
German law applies. Notwithstanding the provision regarding the delivery of the Products in accordance with Incoterms 2000, the place of our registered office is the place of performance for all disputes arising from the business relationship. The place of our registered office is the exclusive place of jurisdiction for all disputes arising from the business relationship. We are also entitled to sue the customer at the court having jurisdiction over the place of the customer's registered office.
Should provisions of these GTCBs and conditions be or become invalid, the validity of the remainder of the GTCBs will be unaffected thereby. Amendments and modifications hereto must be made in writing unless they are based on a separate agreement. This also applies to a waiver of the written form requirement.