Terms and conditions of J. Schneider Elektrotechnik GmbH
§1 Application of the Conditions
- The legal relationships to our customers, who are business persons within the meaning of § 24 AGBG, are based exclusively upon these conditions of contract. Amendments and supplements require for their validity to be made in writing. No other conditions of contract shall apply, even if we do not contradict them and perform the contract.
- These conditions of business shall apply also to all future transactions with customers with whom we maintain constant business relationships.
- Soley these General Terms of Delivery apply insofar as the Customer is a general merchant or is equated with same.
§2 Offer and Acceptance, Licence
- Our offers may be withdrawn at any time prior to acceptance, and lose their validity after one month. Customer orders only lead to the conclusion of a contract when we perform the same, or when the customer receives our written confirmation of contract.
- The rights in descriptions, plans, drawings and software which we make available to the customer, in particular in relation to the use, reproduction and dissemination of the same, are exclusively our property. The customer shall keep these objects secret in relation to all third parties.
- As far as software is a component of the consignments and if not stipulated otherwise we hereby grant the customer a perpetual non exclusive license to use and display the software in his company, for his own purposes and in combination with the delivered hardware only (e.g, USV-System) and solely according to the contract (condition agreement) and the contractual purposes. The Licensee may make and keep one copy of the Software for back-up purposes provided he reproduces and includes the original copyright notice. All other rights of use, especially the adaptation, the arrangement and other revisions are permitted only, if necessary for the maintenance of the indented use and for error recovery purposes and solely in cases of default. Without our explicit authorisation, the rental, the lease, the spread of the software and the use in computer centres by the customer is prohibited.
- In cases of third party copyright infringements , the cusomer will support our legal and out of court action. The customer will inform us in writing if any third party intends to use our software; he will inform any third party about the limited license.
- The software is delivered on an appropriate data media and contains an integrated online-help. We do not owe any user manual.
- Our prices apply ex works exclusive of packaging; the statutory value added tax shall be added thereto. Packaging will be charged at cost price and will not be taken back.
- The net prices are calculated on the Cu basis of € 153,-- per 100 kg. The calculation in accordance with the DEL quotation on the day of receipt of the order plus 5% processing supplement.
- We are authorized to calculate a copper price supplement as follows:
Quotation DEL in €/100 kg + 5% supplement minus € 153.00 : 100 x weight /kg
The surcharge per kg of input weight is to be rounded up to a full € 0.05.
- If, after the conclusion of the contract with the customer, in particular the world market prices for raw materials or the purchase prices for other supplier products increase, we shall be entitled to adjust our prices if there is a period of more than 4 months between the conclusion of the contract and the delivery.
- lf not otherwise expressly agreed, transport, erection, installation, and assembly shall be remunerated additionally. These conditions of contract shall apply accordingly to ancillary services.
§4 Payment, Assignment
- Our invoices are due for payment within 30 days net following the invoice date without any deduction, or within 10 days following the invoice date with 2 % quick payment discount. Repairs and assembly works are to be paid immediately following performance of the contract without any deduction.
- We reserve the right in the case of contracts of an amount of more than € 15.000.- to require a payment on account in the amount of 1/3 of the contract sum prior to performance of the contract. In the case of the first delivery to a customer, in the case of deliveries abroad and in the case of default on the part of the customer, we may require payment in advance.
- We charge default interest 8 % above the discount rate for the time being. We might proof a higher loss on account of the default.
- Payments by the customer are always allocated in accordance with § 366, para. 2, 367 BGB. The customer may only set-off payment against undisputed claims or claims which have been judicially determined and are non-appeal able or no longer appeal able. lt may not assign claims directed against ourselves.
§5 Delivery and Performance
- Part performance and deliveries are permissible.
- Periods of supply and performance stated are approximate periods, except in the case of express contrary agreement. For compliance with the periods, the point in time of the passing of risk in accordance with § 6 is decisive.
- we reserve the right to deliver ourselves. In the event of a shortage of raw materials or supplier parts in the supply chain, we shall be entitled to postpone delivery dates. In the case of framework supply contracts, partial deliveries are permissible; in this case, we shall endeavour to supply all our customers pro rata. In the event of a shortage of raw materials or supplier parts, we shall inform the customer immediately of this and of the consequences for the delivery.
- If for the performance of the contract technical questions need to be clarified, consents to be obtained or other conditions to be fulfilled, in which the customer or third parties are involved, the periods of delivery and performance stated shall be extended by the period of time in which these pre-conditions are not fulfilled, without our being responsible therefor. Periods of delivery and performance shall also be extended by the period in time for which we can prove that we were impeded by labour disputes, force majeure or other unforeseen occurrences for which we were not responsible, from producing, manufacturing or delivery goods or providing services.
- Each reminder and setting of a time limit requires for its validity to be made in writing; a period of time for performance / subsequent performance must be appropriate. Should we, for reasons for which we are responsible, be in default, the customer shall have the right to claim for each completed week of default an aIl-inclusive compensation for the fault in an amount of 0.05 % of the value of the contract, subject, however, to a maximum of 5 % of the contract value. For damage arising from the default in excess of this figure, § 9 shall apply.
§6 Framework Contracts
- In the case of framework supply agreements which extend beyond 4 months, we are unable to quote fixed prices due to the current situation with regard to raw materials and supplier parts. Should the procurement costs for us increase by more than 10%, we shall be entitled to increase the prices stated in the offer in accordance with the price increases for preliminary products. In the event of disruptions in the supply chain which we cannot influence, we shall supply our customers on a pro rata basis taking into account the agreed delivery quantities. We will inform our customers immediately of any supply bottlenecks that have occurred or are foreseeable.
§7 Bearing of Risk
- Risk shall pass upon the delivery of goods to the customer, when the consignment ready for service is brought to despatch or is collected.
- In case of delivery of goods with erection or assembly, and in the case of contracts for works, risk shall pass to the customer when we declare the delivery to be ready for service, or the customer takes the delivery or performance into service, unless the delivery or performance evidences considerable defects or the customer expresses ist approval and acceptance.
§8 Reservation of Title
- We reserve ownership in the goods delivered (reserved goods) until fulfilment of all our existing and future claims arising out of the business connection with the customer.
- In the event that our property in the reserved goods is extinguished by amalgamation (e.g. by installation) it is hereby agreed that the (co-)ownership of the customer in the unified article shall pass to us in proportion to the invoice value of the reserved goods, and shall be stored for us by the customer free of charge.
- The customer may process and sell the reserved goods in the ordinary course of business so long as it is not in default in payment. In the case of resale, it shall reserve ownership in the reserved goods as against its customers until full payment of the purchase price. lt is not permissible to pledge the goods or to assign the same by way of security. The claims against third parties arising from resale or any other legal basis concerning the reserved goods are hereby assigned by the customer to ourselves in their full extent by way of security. We revocably authorise the customer to collect the claims assigned to us for our account in its own name. At our request, the customer shall disclose the assignment and give us the necessary information and documents.
- In the event of seizure of the reserved goods by a third party, the customer shall draw attention to our ownership and notify us immediately in writing. Costs and damage shall be borne by the customer.
- In the event of behaviour of the customer in breach of the contract - in particular delay in payment - we are entitled to repossess the reserved goods, including from third parties, at the cost of the customer; the customer hereby assigns to us for this purpose its right to claim the surrender of the goods from third parties. No with drawal from the contract is constituted by the repossession or seizure of the reserved goods by ourselves.
- We shall, at our option, release fully paid deliveries if the existing security provided through reservation of title exceeds the claims to be secured by more than 20 %.
§9 Duty to give notice of defects, material defects, defects in title
- The customer shall inspect our deliveries and performance without delay following the delivery or the notification of their readiness for operation, and notify US in writing without delay of any faults or deviations from its order. §377ff HGB.
- We guarantee the expressly agreed quality of deliveries / performance and their suitability for use presumed in the contract, and that the contractual use of deliveries / performance by the Customer does not oppose any third party rights.
- The customer shall support us in guarantee cases in such manner that it gives us an explixit description of the fault, grants us the necessary time and opportunity to investigate and rectify the fault on site and enables us, if necessary, to carry out the rectification of the fault in our works. We may initially carry out subsequent performance for proven material damage. Should the delivered software be defective, subsequent performance includes a right to present reasonable alternatives to prevent the effects of the defect. The contractors acknowledge that according to engineering rules it is not possible to program error-free software. Subsequent performance shall be carried out at our discretion via rectification of defects or replacement delivery. In the case of proven isolated defects in title we shall guarantee, via subsequent performance, to provide the Customer with a legally correct right of use to the deliveries or performance or, at our discretion, to replaced and equal deliveries or performance. We shall carry the cost of subsequent performance. We may make at least two attempts to provide subsequent performance for each notified case of damage. In special cases, a greater number of attempts at subsequent performance may be deemed acceptable to the Customer. If the delivery / performance is carried out or rendered at a place other than his commercial establishment, the Customer shall carry the expenses of the subsequent performance incurred in this respect
- If the subsequent performance ultimately fails, the Customer shall be entitled to reduce the remuneration or reverse the contract. Paragraph 9 applies to the compensatory damages and compensation of expenses in vain. Other warranty claims are excluded.
- If the subsequent performance has ultimately failed, or if we do ultimately and seriously refuse the subsequent performance or if the subsequent performance is unreasonable for the Customer due to other reasons, the Customer may request that the contract be reversed, he may request abatement instead of performance or compensatory damages only subject to the following additional preconditions: prior to each intended end of a performance exchange we are to be informed of the reason for complaint, detailed notice is to be given of the breach of contract and a request is to be made to remedy the fault with an appropriate deadline of at least 10 workdays, apart from urgent cases. Furthermore, the end of additional performance exchanges is to be threatened. Further performance exchanges are excluded following expiry of the deadline. All declarations in this respect are subject to the written form.
- Insofar as we are to carry the cost of subsequent performance in the case of providing subsequent performance / replacement delivery, the Customer shall carry additional expenses incurred for breaching the obligation pursuant to § 3, or if the subsequent performance is complicated due to improper alterations to our delivery / performance.
- If the rectification of the fault in cases under para. 5, second sentence, is made considerably more complicated, we shall be released from our guarantee obligations. The same shall apply if we provide services in accordance with the specifications of the customer, and faults in our delivery or services result from such specifications.
- The period of limitation is as follows:
- Five years for material defects and defects in title in cases of § 438, Section 1, no. 2 of BGB and
§ 634a, Section 1, no. 2, of BGB,
- One year for other material defects,
- One year for other defects in title if the defect in title is not subject to a third party real right for which
the delivery or performance may be reclaimed,
- Three months for used items, and
- In other respects pursuant to the statutory provisions insofar as nothing to the contrary is agreed upon. The statutory period of limitation shall also apply if a material defect or a defect in title is fraudulently concealed.
- The Customer is to provide us with detailed and written information without delay if a third party asserts claims which impede the contractual use of the delivery or performance. He authorises us with immediate effect to conduct the dispute alone with the third party in court and out of court. If we make use of this authorisation, at our discretion, then the Customer may not acknowledge third party claims without our approval, and we shall be under obligation to ward off the claims at our own cost. In such a case we shall release the Customer from all costs and damage associated with fending off the claims insofar as these are not attributable to the Customer's conduct which is contrary to his duty. This section's provisions apply irrespective of the occurrence of the statutes of limitation pursuant to Section 9.
§ 10 Damages
- We shall pay damages or compensation for expenses incurred in vain, irrespective of whichever legal reasons (e.g. breach of obligations or unlawful acts) only for
- Intent and in cases in which we have furnished a guarantee or assumed the procurement risk - full
damages or compensation;
- In the case of gross negligence in the sum of foreseeable damage which should have been avoided
via the breach of obligations.
- In other cases only in the event of breach of a key obligation if this places the profit intention in jeopardy, for which we shall compensate typical and foreseeable damage. However, this shall be restricted to remuneration resulting from the respective contract.
- This does not affect statutory liability in the case of danger to life and limb, personal damage / health risks or liability pursuant to the Product Liability Act.
- Insofar as an insurance policy taken out by us covers the damage, we shall make available to the customer the insurance payment in full irrespective of the limitation on liability that has been agreed upon. At the customer's request we shall also be prepared to obtain further-reaching insurance coverage.
- The objection of contributory negligence remains open.
- Within the scope of his duty to reduce damages, the customer is obliged to backup his data on a regular basis. Except in cases of intention and gross negligence we are liable for any loss of data only if the customer fulfilled this obligation and only if the data is mechanically recoverable at appropriate complexity.
- A period of limitation of one year applies to our liability pursuant to Section 1 resulting from the contract and from a contractual obligation pursuant to § 331, Section 2, of BGB, apart from intent. These periods shall commence when the Customer gains knowledge of circumstances that establish a claim or when he should have gained such knowledge without gross negligence. The statutes of limitations shall come into force at the latest on expiry of the maximum periods stated in § 199 of BGB. This does not affect the period of limitations for claims due to material defects and defects in title (§ 8, Section 9), which are subject to varying provisions.
§11 Obligations of the Customer in the Case of Assembly Works
- The customer shall be responsible for ensuring that the assembly can be carried out without special costs. Prior to the commencement of the assembly works, the customer shall, without being specifically requested to do so, submit in writing the necessary details concerning the location of concealed electricity, gas and water pipes or similar installations, and the necessary statics information.
- Prior to the erection or assembly, the items necessary for the commencement of the work must be present on site, to the extent that the provision of the same is not included in our obligation of performance, and all preparatory works must be so far completed that the erection or assembly can begin immediately following the arrival of our personnel, and can be carried out without interruption.
- In the absence of any written agreement to the contrary, the customer shall at ist cost assume the responsibility of providing in the due time
- unskilled workers and skilled personnel not from the branch, including the necessary tools;
- ancillary works not from the branch, including the necessary building materials therefor
- commodity goods and materials such as scaffolding timber, trowels, bearing plates, cement, plaster and sealing material, lubricants, fuel, scaffolding, lifting gear;
- energy, water, heating and light
- facilities for the secure storage of machine parts, equipment, materials and tools, and also suitable work and rest rooms for assembly personnel, including washing and toilet facilities;
- measures for the protection of our personnel, and our property at the work site, in particular protective clothing and protective devices which for the works carried out by us are not usual in the branch.
§12 Final Provisions
- The place of performance for delivery and payment and the exclusive court of competent
jurisdiction for any disputes arising out of this contract shall be Offenburg.
Exclusively the law of the Federal Republic of Germany shall apply, excluding the Unified International Purchase Laws
BGB - German Civil Code
HGB – German Commercial Code
AGBG – Act concerning General Conditions of business
- WEEE-Reg.-Nr. according to ElektroG: DE 20598717