General Terms and Conditions

of Xaver Schneider GmbH & Co. KG, 88512 Mengen (Stand 05/2014)

The terms of sale, delivery and payment set out below shall apply to all contracts concluded with us



1General  
1.1All our supplies and services shall be governed exclusively by the terms and conditions set out below.
1.2Any other deviating or conflicting terms and conditions shall not be accepted by us without our previous express consent.
1.3The present General Terms and Conditions shall also apply to any future business transactions between the parties and if we should proceed with delivery of the goods knowing about the existence of deviating or conflicting conditions.
1.4These General Terms and Conditions apply only in relation to entrepreneurs, legal entities under public law or special funds under public law pursuant to § 310 para. 1 BGB (German Civil Code).
1.5Any documentation submitted for the purpose of an offer, such as drawings, figures and dimensional information, shall only be considered approximate specifications unless they are expressly stated to be binding by us. We reserve the right to implement technical modifications and reserve ownership and copyright to our documentation.. 
  
2.Offer, acceptance
 

Our offers are subject to confirmation. If a purchase order constitutes an offer pursuant to the provisions of § 145 BGB, we shall be entitled to accept it in writing or text format according to § 126 b BGB within two weeks.

  
3.Prices and terms of payment
3.1

Our prices are understood ex works including packaging costs. 

3.2The price agreed is based on the current cost of materials and wages. If these should change by the time of shipping the goods, the price shall also be adjusted in proportion with the percentage of the change in cost of materials and wages, with the change in cost of materials and wages being taken into account at equal percentages. The current state of progress of production at the time of occurrence of a change in cost of materials or wages shall be taken into account, i.e. the adjustment shall only apply to that portion of the price corresponding to the costs that will still be incurred. 
3.3The prices specified do not include value added tax at the statutory rate.
3.4Our invoices are payable within 10 days without any deduction, counting from the invoice date in either case. Payments shall always be deemed to settle the oldest invoice due. Cash discount agreements must be agreed upon separately and will only be granted it any and all payment obligations from earlier delivery contracts are settled. 
  
4.

Delivery time, retention period

4.1The beginning of the delivery time specified by us is contingent upon clarification of all technical issues in which the purchaser is required to cooperate.
4.2If we should be unable to keep a binding delivery period for reasons beyond our control (unavailability of service), we will inform the purchaser about this without delay and communicate the anticipated new delivery period at the same time. If the service should still be unavailable within the new delivery period, we shall be entitled to withdraw from the contract in full or in part; any consideration already effected by the purchaser will be reimbursed without delay. This concept of unavailability of service shall include, without limitation, failure of timely delivery by our sub-suppliers if we had concluded a congruent covering contract. The purchaser's statutory rights to cancellation and termination and the statutory provisions about winding up a contract in case of exclusion of the obligation to perform (e.g. impossibility or unreasonableness of rendering the service and/or remedial performance) shall remain unaffected.
4.3The existence of a default in delivery shall be governed by the statutory provisions. However, a reminder by the purchaser shall be required in any case. If we should get into delay in delivery, the purchaser shall be entitled to claim flat damages for delay if we should be liable for ordinary negligence, excluding any further rights. The flat rate for damages shall be 0.3% of the net price (order value) for every full calendar week of delay, however, not exceeding a total of 3% of the order value of that part of the total order which cannot be used at all or according to the intention of the contract due to the delay. We shall be at liberty to prove that the purchaser has not suffered any loss or only a substantially lower loss than the flat rate specified above.
4.4.Films paid by the purchaser will be kept in storage by us at the purchaser's risk for a period of up to two years after the last delivery.
  
5.Offset, lien, cessation of payments
5.1The purchaser shall be entitled to offset any amounts only to the extent that its counter-claims are either uncontested or established as final and absolute. The purchaser shall only be entitled to assert any liens on the basis of counter-claims from the same contractual relationship.
5.2If the purchaser should cease payments, file for umbrella proceedings or insolvency, all invoices shall become due and payable immediately, all discounts shall be forfeited and any pending shipments shall only be made against advance payment or security.
  
6.Retention of title
6.1We reserve the right of ownership to any and all goods supplied by us until all our claims from the business relationship with the purchaser are settled. If the goods supplied should be incorporated into or integrated with other equipment, our right of ownership shall also extend proportionally to the finished goods or equipment created by the integration. This shall also apply if the compensation for certain shipments identified by the purchaser should have already been paid, since the retention of title serves as a security for the balance in our favour. If the value of the goods delivered under retention of title for the purpose of security should exceed our total claim by more than 20%, we shall be obliged to make a reassignment to this extent on purchaser's request. The selection of the security to be released is at our discretion.
6.2The purchaser shall have the right – revocable at any time – to resell the goods delivered within the scope of ordinary business transactions unless the claim resulting from such resale should already have been assigned to any third party; the right to resale shall also be forfeited if the purchaser should cease payments.
6.3The purchaser hereby and now assigns to us as a security any claim to which purchaser may be entitled from resale or similar economic dispositions, regardless of whether the goods subject to retention of title are sold without or after integration with other goods.
6.4If goods subject to retention of title are resold either separately or in combination or after integration with other goods not owned by us or after further processing, the assignment shall only cover the invoice amount relevant between us and the purchaser for the goods subject to retention of title including value added tax.
6.5The purchaser is entitled to collect any assigned claim as long as purchaser meets the payment obligations towards us; the amounts collected by the purchaser shall be paid over to us immediately insofar as our claims are due and payable. If the purchaser should fail to meet its payment obligations, we shall be entitled to communicate the assignment of claims to the purchaser's contractual partner.
6.6We shall be entitled to request surrender of the goods subject to retention of title if the purchaser should not meet its payment obligations either after a calendared deadline or after fixing a time-limit. Such request to surrender shall be deemed cancelation of contract at the same time.
6.7The purchaser must neither pledge the goods nor assign them by way of security. In case of an order of attachment or other disposition by a third party, the purchaser must notify us without delay.
  
7.Passage of risk and shipment  
7.1The risk shall pass to the purchaser on shipment of the goods at the latest; this shall also apply if partial deliveries are made or if we should have agreed to provide other items or services such as, for example, shipping costs or delivery to destination.
7.2If shipment should be delayed as a result of circumstances attributable to the purchaser, the risk shall pass on the date we establish readiness for shipment.
7.3Partial deliveries shall be admissible.
  
8.Warranty for defects
8.1The purchaser's rights regarding warranty for defects are contingent upon the purchaser meeting its obligations regarding inspection and notification properly pursuant to § 377 HGB (German Commercial Code).
8.2In case of a defect that is attributable to us, we shall be entitled to remedy it at our discretion by repair or replacement free of charge. We don’t have to bear additional costs which occur because the product has been brought to a place which is not the peace of business of the customer except otherwise agreed upon. If we should not be ready or unable to perform such rectification of defect, particularly if this should be delayed beyond reasonable time-limits for reasons attributable to us, or if at least two rectification attempts should fail, the purchaser shall be entitled – without prejudice to any claims for damages pursuant to clause 9 below – to cancel the contract or claim reduction of payment.
8.3If the purchaser is entitled to make claims for material defects at its discretion, purchaser shall be obliged to state on our request and within reasonable time whether it will demand – subject to the appropriate requirements – remedial performance, cancel the contract, claim reduction of the purchase price and/or claim damages in lieu of performance.
8.4We do not warrant that the goods supplied by us comply with foreign national regulations unless specifically agreed in writing.
8.5

With regard to our liability, article 9 shall apply in all other respects. Any further claims for defects shall be excluded.

  
9.Liability
9.1The purchaser shall not be entitled to make any claims for damages. Exceptions to this are purchaser's claims for damages due to loss of life, limb or health or arising out of violation of essential contractual duties (cardinal obligations) or based on liability for other damage resulting from wilful or gross neglect of duties by ourselves, our legal representatives or vicarious agents. Essential contractual duties are those which are necessary to achieve the objective of the contract.
9.2In case of violation of essential contractual duties, our liability shall be limited to the foreseeable damage typical for the type of contract if it was caused by ordinary negligence unless the purchaser's claims for damages should be based on loss of life, limb or health.
9.3  The limitations of the preceding paragraphs 1 and 2 shall also apply in favour of our legal representatives and vicarious agents if any claims should be asserted against them directly.
9.4 The provisions of the product liability legislation shall remain unaffected.
  
10.Custom-made products, advertising umbrellas
10.1All purchase orders for custom-made products and advertising umbrellas must undergo a feasibility analysis. The purchaser is responsible for the suitability and freedom of defects of the samples and/or graphic data submitted by the purchaser.
10.2The delivery quantity may be increased or reduced by a reasonable number of units. The delivery quantity shall be deemed acceptable if the number of units is 10% higher or lower.
  
11.Governing law, legal venue
11.1The present agreement is governed by the law of the Federal Republic of Germany (excluding the provisions on conflict of laws of international private law and the UN Convention on International Sale of Goods).
 Erfüllungsort für alle unsere Lieferungen und Leistungen ist Mengen. 
11.2If the purchaser is a merchant/entrepreneur, a legal entity under public law or a special fund under public law, the exclusive legal venue shall be the court competent for our domicile. However, we shall also be entitled to institute an action against the purchaser at the latter's domicile including any injunctive order.
  
12Other provisions
12.1The above provisions shall also apply to deliveries abroad unless otherwise agreed in writing.
12.2Shipments abroad shall additionally be subject to the "ex works" clause of INCOTERMS 2010.
12.3If any individual provision should be legally ineffective, all other provisions and agreements shall remain unaffected.
12.4The contractual language is German. If there should be any semantic discrepancy between the German text and a foreign-language translation of the contract and the present General Terms and Conditions, the meaning of the German text shall prevail.

Kontakt

Anfrage
Xaver Schneider GmbH & Co. KG
Schirmfabrik
Obereschring 1
88512 Mengen

+49 (0) 7572 7636-0
+49 (0) 7572 7636-126
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