Terms & conditions, status August 2023
of
Schulz-Electronic GmbH
Dr.-Rudolf-Eberle Straße 2
76534 Baden-Baden
1. Validity and form
ll our offers, orders, deliveries, and services (hereinafter referred to as “services”)—including future ones—are provided exclusively on the basis of our General Terms and Conditions, which can be accessed on our website. The General Terms and Conditions are an integral part of all contracts with us; they are valid even if no specific reference is made to them.
Our General Terms and Conditions apply only to entrepreneurs (§§ 14, 310 BGB). Our General Terms and Conditions apply exclusively. The customer's General Terms and Conditions do not apply, even if we do not separately object to them. They do not become part of the contract even if the order is accepted or executed without reservation.
Individual agreements made with the customer in individual cases (including collateral agreements, supplements, and amendments) shall in any case take precedence over these General Terms and Conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
In case of doubt, trade clauses shall be interpreted in accordance with the Incoterms® published by the International Chamber of Commerce in Paris (ICC).
Changes and additions to these terms and conditions and legally relevant declarations by the customer (e.g., objection, setting of a deadline, withdrawal, or reduction) that are not based on an individual agreement must be made in writing (e.g., letter, email, fax), unless the written form has been expressly agreed upon. This also applies to the waiver of the written form requirement. Statutory formal requirements remain unaffected by this.
2. Conclusion and obligation of the contract
Unless expressly stated otherwise, our offers are subject to change. We can accept orders from the customer within 10 working days. A contract, even in the case of a verbal order, is only concluded upon our order confirmation, but no later than upon commencement of performance.
Verbal and telephone agreements require our confirmation in writing to be legally valid. Obvious errors, printing, typing, arithmetic, and calculation errors are non-binding and do not constitute grounds for a claim. We only provide a guarantee if we expressly designate it as such in writing.
The scope and subject matter of the service shall be determined solely by the order confirmation or, in the case of immediate order execution, by the delivery note. If these contain changes to the customer's order, the customer's consent shall be deemed to have been given if they accept the service without reservation and do not immediately object in writing.
Order changes or extensions by the customer after order confirmation entitle us to adjust prices and extend performance times.
Our offers are based on information provided by the customer, without knowledge of the customer's circumstances or specifications. Information, samples, specimens, or illustrations in catalogs, price lists, or other advertising material are only approximate (e.g., weight, dimensions, utility values, load capacity, tolerances, or technical data), unless the usability for the contractual purpose requires exact conformity. A reference to technical standards serves to describe the service and is not a guarantee of quality.
If we produce a sample or prototype and this is approved by the customer, our corresponding performance of the service shall be deemed to be in accordance with the contract. The same applies if we perform the service according to plans drawn up by us and approved by the customer.
A promised or guaranteed performance shall also be deemed to have been fulfilled if the performance achieved deviates by 10% (tolerance).
Unless otherwise agreed, no instruction or advice is owed. Insofar as we provide technical information or advice and this information or advice is not part of the contractually agreed scope of services, this is done to the exclusion of any liability.
If, during the performance of the service, we recognize that it is not technically and/or process-reliably feasible or that specific requirements of the service must be modified, we will inform the customer of this and, if possible, submit alternative proposals (change request). For this purpose, we will provide the customer with a supplementary offer. The customer must notify us immediately, but no later than 10 working days after receipt of the offer, whether they agree to the change. If no agreement can be reached, both parties may withdraw from the contract. Our expenses incurred up to that point shall be reimbursed. Claims for damages by the customer arising from this are excluded. Insofar as we provide documentation (e.g., manuals) for certain services, these are available digitally on data carriers or as a free download on our website.
Goods for inspection In the case of deliveries of goods for selection or inspection, the purchase contract only becomes binding upon approval by the customer. Approval shall be deemed to have been given if the customer does not object to the purchase in writing within 10 days of receipt of the goods or returns the delivered goods. The customer shall be liable for any accidental loss or accidental deterioration of the goods from the moment of delivery.
3. Prices & payment
Unless otherwise agreed, our current prices plus VAT at the statutory rate applicable on the day of performance shall apply. All prices are ex warehouse and exclude ancillary services such as packaging, transport insurance, training, travel expenses, and other costs.
If missing information, unclear objectives, or tasks result in additional work for us, this additional work will be invoiced separately in accordance with our current prices if the customer does not correct or supplement the missing information despite being requested to do so.
Unless otherwise agreed, invoices are due immediately without any deductions. The date on which the payment is credited to our account is decisive for the timeliness of a payment. In the event of late payment, discounts, rebates, and other benefits shall lapse, and interest at a rate of 9 percentage points above the base rate (§ 288 BGB) shall be payable. The commercial interest rate (§ 353 HGB) remains unaffected by this.
If the agreed performance period exceeds four months after conclusion of the contract, we reserve the right to change our prices appropriately with one month's notice if, after conclusion of the contract, cost reductions or increases occur, in particular due to collective wage agreements, changes in production costs, or market prices for comparable products. At the customer's request, we will provide evidence of the increase factors. If the price increases by more than 20%, the customer may withdraw from the contract.
In the event of late payment or justified doubts about the customer's ability to pay, we may demand advance payment and/or assert a right of retention with regard to further performance.
The customer shall only be entitled to a right of retention and the right to offset if his counterclaims are undisputed, have been legally established or are based on claims for defects.
Proof of export
If the customer, who is based outside the Federal Republic of Germany (non-domestic customer), or their representative collects services from us and transports or ships them to a non-domestic area, the customer must provide us with the necessary tax documentation. If this proof is not provided, the customer shall pay the sales tax rate applicable to deliveries within the Federal Republic of Germany on the invoice amount.
4. Delivery Transfer of risk
Unless otherwise agreed, delivery shall be EXW (ex works Incoterms 2020®) from the warehouse, which is also the place of performance for the service and any subsequent performance. Unless unreasonable, partial, multiple, reduced, or early performance is permissible. A delivery period shall be deemed to have been met if the shipping service provider picks up the shipment for dispatch within this period; we accept no liability for any delays on their part. At the customer's prior instruction and expense, we shall insure our performance and/or transport.
The existence of conflicting regulations or the absence of permits shall not affect the obligation to accept delivery.
Performance times or dates agreed in writing or verbally are only approximate, unless a fixed performance date has been agreed in writing. Performance times begin upon receipt of the order confirmation and the complete and defect-free provision of materials, but not before all commercial and technical questions have been clarified or a required advance payment has been credited.
Compliance with the performance period is subject to timely delivery by our suppliers. We are not liable for the fault of our suppliers; any claims for compensation against them are assigned to the customer. After expiry of a non-binding performance period, the customer may only withdraw from the contract if he has previously set us a grace period of at least 30 days in writing with a threat of rejection.
Force majeure, official measures, and other circumstances beyond our control, in particular strikes, pandemics, epidemics, operational disruptions, lack of permits, material procurement difficulties, unrest, embargoes, travel warnings from the State Department, which significantly impede or render impossible our own performance or that of our suppliers, not only temporarily, shall release us from our obligation to perform for the duration of their effect. We shall not be liable for delays or impossibility due to these events. The customer may request us to declare within a period of 2 weeks whether we wish to withdraw from the contract or fulfill it within a reasonable period of time. We are entitled to withdraw from the contract in whole or in part if, for the above reasons, we cannot reasonably be expected to fulfill the contract without the customer being able to derive any claims for damages from this. In this case, the customer is released from their corresponding obligation to pay consideration. If performance is no longer reasonable for the customer for the above reasons, they may withdraw from the contract after setting a reasonable grace period. We will notify the customer of any delays, regardless of the reason.
he occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the customer is required. In the event of a delay in delivery, we shall be liable for slight negligence to pay lump-sum damages of 0.5% per completed week of delay, up to a maximum of 5% of the value of the goods affected by the delay. We shall be entitled to prove that the damage was lower. Otherwise, our liability is determined in accordance with the liability provisions of these General Terms and Conditions.
If the customer is in default of acceptance, fails to cooperate, or our delivery is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs). For storage at our premises, we charge a flat-rate compensation of 0.5% EUR per calendar week or part thereof, up to a maximum of 5% or 10% in the event of final non-acceptance, beginning with the delivery period or, in the absence of a delivery period, with the notification that the service is ready for shipment. We reserve the right to assert and prove further, lower, or no storage costs.
5. Retention of title
We reserve all rights, in particular property rights, copyrights, and other intellectual property rights, to all samples, tools, specifications, models, plans, data, drawings, cost estimates, information of a physical and non-physical nature, etc. provided to the customer, including in electronic form. Reproduction or transfer to third parties is prohibited.
We retain title to the goods until all claims (including all balance claims from current accounts) to which we are entitled against the customer now or in the future for any legal reason have been satisfied. Pledging and transfer by way of security are not permitted. The customer must notify us immediately in writing if third parties access the goods and if an application is made to open insolvency proceedings.
Any breach of contract by the customer entitles us to withdraw from the contract in accordance with the statutory provisions and to demand the immediate surrender of the goods or, if applicable, the assignment of the claims for surrender against third parties. The demand for surrender does not simultaneously constitute a declaration of withdrawal.
Until revoked, the customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. The following applies:
The retention of title extends to the full value of the products resulting from the processing, mixing, or combination of our goods, whereby we are considered the manufacturer. If third-party ownership rights remain, we acquire co-ownership in proportion to the invoice values of the goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title (see above). The customer hereby assigns to us as security all claims against third parties arising from the resale of the goods or the product, either in full or in the amount of any co-ownership share. We accept the assignment. The customer remains authorized to collect the claim alongside us. We will not collect the claim as long as the customer meets their payment obligations, there is no deficiency in their ability to pay, and we have not asserted our retention of title. However, if this is the case, we may demand notification and disclosure of all necessary information in order to collect the claims ourselves and revoke the customer's authority to further sell and process the goods subject to retention of title. If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer's request.
6. Rights in respect of defects
If the customer is a merchant, they must carefully inspect the goods received immediately upon receipt. Defects must be reported to us in writing without delay (“notification of defects”). In the case of goods intended for installation or fitting, an inspection must always be carried out immediately before processing. Shipping or transport damage must be documented to the shipping service provider. Otherwise, § 377 HGB (German Commercial Code) applies. If no notification is made, the service shall be deemed to be faultless and in accordance with the order, unless it is a defect that was not apparent during the inspection. Such defects must be reported immediately after their discovery.
Our liability for defects is based primarily on the agreement made regarding the quality and intended use of the goods (including accessories and instructions). All product descriptions and manufacturer's specifications that are the subject of the individual contract or that were publicly announced by us (in particular in catalogs or on our website) at the time of conclusion of the contract shall be deemed to be an agreement on quality in this sense. If the quality has not been agreed, the legal provisions shall be used to assess whether or not a defect exists, § 434 (3) BGB.
By negotiating complaints, we do not waive the objection that these complaints were not made in a timely manner, were unfounded, or were otherwise insufficient. Measures to mitigate damage shall not be deemed an acknowledgment of defects. We do not guarantee compliance with any special regulations applicable to the customer's operations or to import or export, or the existence of necessary approvals. The service may only be used in the country for which it was ordered. Unless otherwise agreed, export shall be at the customer's responsibility, liability, and expense. In the event of export, the customer undertakes to comply with the statutory provisions (e.g., dual use), in particular those of German foreign trade law. Liability for the infringement of property rights outside Germany shall only apply if separately agreed in writing.
Material-related deviations from the agreed quality and scope, as well as changes to the service in the course of technical progress, in the construction, design, dimensions, weight, or color, are permissible within the scope of industry-standard tolerances, provided that they do not restrict the usability for the contractually intended use, no guarantee exists, and they are reasonable for the customer based on an objective assessment of all circumstances. We guarantee that the software essentially fulfills the functions described in the accompanying documentation, provided that the software is used in accordance with the contractually agreed requirements and operating conditions (e.g., operating system). We do not guarantee that the program functions of the software selected by the customer will meet their requirements or that the software will work with other software programs available to the customer. The customer shall report malfunctions within a reasonable time frame and provide as much detail as possible (submission of error messages and description of operating steps) so that we can begin to rectify the error in a targeted manner. The customer shall, as far as possible, provide the necessary data-related information and documents in full and without delay, if possible in a form that allows the malfunction to be reproduced. If reasonable for the customer, subsequent performance may also take the form of a replacement solution, a workaround, or a software update.
If the service is defective, we shall fulfill our obligation to remedy the defect at our discretion by either rectifying the defect (repair) or delivering a defect-free service (replacement). We may refuse one type of remedy or the entire remedy if it is only possible at disproportionate cost. The customer must give us the necessary time, opportunity, and access for subsequent performance; otherwise, we shall be released from liability for the resulting consequences. Subsequent performance does not include the removal, dismantling, or uninstallation of the defective goods, nor the installation, fitting, or installation of defect-free goods, if we were not originally obliged to provide these services; The customer's claims for reimbursement of corresponding costs (“removal and installation costs”) remain unaffected. If we decide to make a subsequent delivery, this shall only take place, if we so desire, in exchange for the return of the defective performance. Replaced parts become our property.
We shall bear the expenses necessary for subsequent performance (e.g. transport costs), provided that these are not increased by the fact that the service was transferred to a location other than the place of performance. This applies in particular in the event that the goods were transferred abroad. If the subsequent performance fails or if we refuse both types of subsequent performance, the customer may withdraw from the contract after setting a reasonable grace period, reduce the remuneration, and/or claim damages.
Only in urgent cases where operational safety is at risk or to prevent disproportionately large damage, in which case we must be notified immediately, does the customer have the right to remedy the defect themselves or have it remedied by third parties and to demand reimbursement from us for the objectively necessary expenses. The right to remedy the defect themselves does not apply if we would be entitled to refuse corresponding subsequent performance in accordance with the statutory provisions. If the customer or a third party remedies the defect without first giving us the opportunity to remedy it, we shall not be liable for the consequences thereof. The same applies to changes made to the service without our consent, replacement of parts, or use of consumables that do not correspond to the original specifications, unless the defect is not based on this.
In the event of unsuitable or improper use and/or repair, faulty assembly or commissioning by the customer or third parties, failure to observe the processing guidelines or operating instructions, natural wear and tear, faulty or negligent handling or storage, improper maintenance and care, unsuitable operating materials, chemical, electrochemical, electrical, or environmental influences, no warranty shall be assumed, unless we are responsible for this.
The customer shall be liable for unjustified complaints, in particular if the cause of the defect lies within his area of responsibility and he has failed to recognize this through negligence or worse. Expenses that are not our responsibility within the scope of liability for defects shall be charged in accordance with our current prices.
Any claims by the customer arising from a defect that go beyond or differ from those specified in these General Terms and Conditions are excluded.
7. Liability
Unless otherwise specified in these General Terms and Conditions, we shall be liable in accordance with the statutory provisions. We shall be liable (1) for damages within the scope of fault-based liability in cases of intent and gross negligence, (2) in cases of fraudulent concealment of defects, in cases where a guarantee of quality has been given, and in cases of claims under the Product Liability Act. In cases of simple negligence, we shall be liable, subject to statutory limitations of liability, only for damages resulting from injury to life, limb, and health and for damages resulting from the breach of an essential contractual obligation. An essential contractual obligation is an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely. In the event of a breach of an essential contractual obligation, our liability is limited to compensation for the foreseeable, typically occurring damage. The limitations of liability also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. In the event of a delay in performance, our liability for slight negligence is limited to a lump-sum compensation of 0.5% per completed week of delay, up to a maximum of 5% of the invoice value of the service affected by the delay. We are entitled to prove that the damage was lower.
The customer is obliged to maintain their own insurance policies to the extent customary in the industry and structure (e.g., in particular, business interruption insurance). The customer must accept any contributory negligence. The customer is responsible for regularly backing up their data. We are not liable for damages caused by negligence resulting from data loss if the customer has not ensured that this data can be reconstructed from data material stored in machine-readable form with reasonable effort.
8. Statute of limitations
The general limitation period for claims arising from material defects and defects of title is one year, and six months for repair orders, from the date of handover/delivery. If acceptance has been agreed, the limitation period begins with acceptance. Special statutory provisions on the limitation period, in particular Section 438 (1) No. 1 and No. 2, (3) BGB, Section 444 BGB, Section 634a (1) No. 2 BGB, Section 639 BGB, remain unaffected.
Claims for damages by the customer pursuant to Section 7 (2) sentence 1 of these General Terms and Conditions and in the event of injury to life, limb, or health shall become time-barred exclusively in accordance with the statutory limitation periods.
The above limitation periods also apply to contractual and non-contractual claims for damages by the customer based on a defect in performance, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases.
9. Exclusion and limitation of liability
In the event of a limitation of liability to foreseeable damage typical for this type of contract, liability per damage event is limited to EUR 100,000.00 for property damage and EUR 200,000.00 for other damage; however, for all damage within a calendar year, liability is limited to a maximum of twice these amounts.
This limitation does not apply if there is statutory unlimited liability or if damages are covered by liability insurance.
If the use of our services could result in damages to the customer that exceed this limitation of liability, the customer shall notify us in writing. We will then make the customer an offer for appropriate additional insurance to cover the additional risk.
10. Property rights, confidentiality, data protection
If the customer provides us with works (e.g., logos, photos, advertising texts, etc.) that are to be incorporated into or edited as part of our service, the customer is responsible for ensuring that they have all the relevant rights to perform the service.
Unless otherwise expressly agreed in writing, the customer is responsible for the legal admissibility of the service, in particular with regard to the provisions of trademark, copyright, or competition law. We will point out any legal risks if we become aware of them.
If, in exceptional cases and on the basis of a written agreement, we bear legal responsibility for the property rights of third parties, the following shall apply: If the use of the service leads to the infringement of industrial or copyright property rights in the country, we shall, at our discretion and at our expense, either obtain a right of use for the customer, modify the service so that the property right is not infringed, or replace it with a service that complies with property rights. If this is not possible for us under reasonable conditions, the customer shall be entitled to the statutory rights. This obligation only applies if the customer informs us immediately of any claims asserted, does not acknowledge an infringement, and reserves all defensive measures for us. If the customer discontinues use of the service for reasons of damage mitigation or other important reasons, they are obliged to inform the third party that the discontinuation of use does not constitute an acknowledgment of an infringement of property rights.
Claims by the customer are excluded if he is responsible for the infringement of property rights or if the infringement of property rights is caused by special specifications of the customer, by an application that we could not foresee, or by the fact that the service was modified by the customer or used in conjunction with a service not supplied by us. The customer hereby indemnifies us against all third-party claims and also bears the costs of reasonable legal defense asserted against us by third parties due to the infringement of third-party rights. The customer shall treat all contractual contents, in particular prices and discounts, know-how, and other trade secrets, as strictly confidential and shall not disclose any information, documentation, drawings, or other documents to third parties or otherwise make them accessible without our express written consent. This shall not apply if such contents are publicly known without breach of the confidentiality obligation. The customer shall also impose the confidentiality obligation on its employees and affiliated companies as well as third parties to whom the contents must necessarily be made accessible.
The customer agrees that their data (communication data, responsible employees, type and scope of their orders, etc.) may be used by us for contract processing. We may also use the data to inform the customer about our products and services if they are typically used in connection with the products and services that the customer has purchased from us.
Software
Unless otherwise agreed, we grant the customer, upon delivery and payment of the software, the non-exclusive and non-transferable contractual right to use the software on one computer within the scope of their business and for their own operational purposes.
All other rights to the software, including the associated material (source code, updates, documentation) and copies made thereof, even if the customer modifies them or combines them with their own software or that of a third party, remain with us. The customer is not permitted to grant sublicenses.
Unless expressly permitted by law or contract, the customer may not reverse engineer or decompile the software or have it reverse engineered or decompiled.
Software provided for testing purposes may only be used for testing purposes and not for commercial purposes.
11. Final provisions
The General Terms and Conditions also apply to companies affiliated with the customer within the meaning of Section 15 of the German Stock Corporation Act (AktG). The customer must impose these General Terms and Conditions on its affiliated companies.
The customer is not entitled to transfer rights from this contract to third parties without our consent. Section 354a of the German Commercial Code (HGB) remains unaffected.
The work, repairs, or installations requested by the customer from us in connection with the service will only be carried out on the basis of our corresponding installation and service conditions. These conditions are accepted when an order is placed.
Ist der Vertrag oder die AGB in verschiedenen Sprachen abgefasst, hat im Zweifel die deutsche Fassung Vorrang. Es gilt deutsches Recht, soweit nicht zwingend nationales Recht entgegensteht.Falls nicht anders vereinbart, und unabhängig von dem vereinbarten Incoterm, ist unser Geschäftssitz auch für Gewährleistungsansprüche Erfüllungsort. Ist der Kunde Kaufmann oder eine juristische Person des öffentlichen Rechts, so ist für alle sich aus dem Vertragsverhältnis unmittelbar oder mittelbar ergebenden Streitigkeiten ausschließlicher- Gerichtsstand unser Sitz. Wir sind jedoch berechtigt, Klage am Erfüllungsort oder am allgemeinen Gerichtsstand des Kunden zu erheben. Vorrangige gesetzliche Vorschriften, insbesondere zu ausschließlichen Zuständigkeiten, bleiben unberührt. Bei Rechtsstreitigkeiten mit Kunden außerhalb der EU, die sich aus oder in Zusammenhang mit dem Vertrag ergeben, ist das Schiedsgericht Zürich gemäß der Internationalen Schiedsordnung (Swiss Rules of International Arbitration) der Schweizerischen Handelskammer zuständig. Das Schiedsgericht besteht aus zwei Schiedsrichtern. Sitz des Schiedsgerichtes ist Zürich, Schweiz. Das Schiedsgerichtsverfahren wird in der Vertragssprache geführt.
Important!
Please follow our instructions for transport damage carefully, as the transport insurer is not liable for damages if the formal requirements are not met. In the event of transport damage, it is in your interest to secure compensation claims by ensuring that representatives of the transport companies are called in in good time to assess the damage in accordance with their relevant regulations, i.e.
EXTERNALLY RECOGNIZABLE DAMAGE OR LOSS:
- must be certified by a corresponding note on the consignment note before the goods are accepted. In the case of rail transport, a report of the facts must also be requested from the railway company.
- In the case of postal shipments, the damage must be certified in writing by the postal service before damaged packages, etc. are accepted.
IN THE EVENT OF DAMAGE THAT IS NOT IMMEDIATELY APPARENT
- which only become apparent upon unpacking, the transport company must be notified immediately in writing. The deadlines for notification are:
a) by post: without delay (within 24 hours at the latest) after delivery by the transport company
b) by rail: no later than 7 days after delivery by the transport company
c) for freight forwarder transports in connection with rail transports, no later than 4 days after delivery by
the transport company.
The following text is recommended for the required entries to be made to transport companies:
To the freight handling office in ______________
(or to the post office, shipping company, or transport company).
On __________ received, (sender __________)
from __________ to __________
specific shipment ___________
(Information from the consignment note, number of packages, signature)
has been accepted here without objection, as there was no visible damage. However, upon opening,
it was found that the contents had been damaged and/or stolen during transport. We hold you responsible for the damage incurred.
If you deem it necessary, you can contact
______________________________
(Name, city, street, house number)
of the extent of the damage.
In addition, please notify the shipping department of our company, stating the delivery note and/or invoice number. Please enclose the documents mentioned in the above-mentioned information sheet with your complaint.