Gebr. Schröder GmbH - Date: 2021

§1 Scope of application

The following general terms and conditions of purchase apply to all orders and contract awards (hereafter referred to as Orders) of Gebr. Schröder GmbH, Konrad-Zuse-Ring 3, 24220 Flintbek, Germany, to contractors as stipulated by section 310 of the German Civil Code (hereinafter referred to as Suppliers). The GTC are an integral part of the business relationship and apply exclusively. We do not recognise any terms or conditions that conflict with or deviate from our terms and conditions of purchase unless we agree to them in writing. Our terms and conditions of purchase also apply if we accept the supplier's delivery without reservation in the knowledge that the supplier's terms and conditions conflict with or deviate from our terms and conditions of purchase. Ancillary agreements must always be made in writing. A party may only invoke verbal agreements if the agreement has been confirmed in writing by at least one party promptly and at the latest within 48 hours. If a written agreement is subsequently amended, this must be expressly stated in the written confirmation. 

§2 Conclusion of contract and offer documents

The supplier must accept our order within two weeks. Otherwise the order shall be deemed to have been rejected. We reserve the property rights and copyrights to illustrations, drawings, calculations and other information. These may only be passed on to third parties with our express consent. These documents must be used exclusively to process our order and must be returned to us immediately after the order has been processed.

§3 Prices and payment conditions

The price stated in the order is binding. The price includes all delivery costs, packaging costs and any transport insurance costs unless agreed otherwise in writing. The price includes statutory VAT. We process invoices swiftly. To facilitate this, the supplier must state the order number shown in the order in accordance with our specifications. Any consequences of failing to comply with this obligation will be borne by the supplier unless they can prove that they are not responsible for the consequences. We will pay the net purchase price within four weeks of delivery and receipt of a proper invoice unless otherwise agreed in writing. If payment is made within two weeks, the supplier shall grant us a two per cent discount.

§4 Place of fulfilment, delivery and default

The place of fulfilment is our registered office unless otherwise stated in the order. Unless otherwise agreed in writing, delivery shall be made to the door and shall be free of charge. The supplier must state our order number on all shipping documents and delivery notes. The delivery time stated in the order is binding. The supplier must inform us immediately and in writing if circumstances indicating that the agreed delivery time cannot be met arise or become apparent. The same applies if circumstances that give rise to justified doubts regarding compliance with the delivery deadline become apparent to the supplier.
In the event of delayed delivery, we will be entitled to the statutory claims. In particular, we are entitled to claim damages and/or withdraw from the contract after a reasonable period has expired without any results. If this occurs, we are in particular entitled to make covering purchases and to charge the supplier for any additional costs. We are permitted to accept goods received late by making an express declaration to the supplier. If this occurs, we also reserve the right to claim for damages caused by delay. 

§5 Contractual penalties

If the supplier is responsible for exceeding the deadline, we are entitled (subject to any further regulation) to demand a contractual penalty of 0.1% of the purchase price (net) per working day but no more than 5% in total. Further rights remain unaffected. After accepting a delayed service, we must claim the contractual penalty with the final payment at the latest. 

§6 Offsetting and rights of retention

We are entitled to offsetting and retention rights to the extent permitted by law.

§7 Inspection of defects and liability for defects

We are obliged to inspect the goods for any deviations in quality and quantity within a reasonable period of time and to report any deviations found. Complaints shall be deemed to have been made promptly if they are received by the supplier within a period of eight working days from receipt of the goods or 14 days from discovery in the case of hidden defects.
Our acceptance of the goods does not constitute approval of the supplier's goods. If the supplier's goods are defective, we shall have the statutory right to claim for defects (in particular as stipulated in sections 437 et seq. of the German Civil Code). These rights include, for example, our right to choose to demand the delivery of defect-free goods, to have the defect rectified (by the supplier) and, after expiry of a reasonable period of time and if this is not superfluous, to have the defect rectified by a third party or by us at the supplier's expense, to declare cancellation, to reduce the purchase price (reduction of the purchase price) and to demand compensation instead of performance or reimbursement of futile expenditure. If the rectification is unsuccessful, we are entitled to further rights/claims of withdrawal and compensation for damages instead of performance without setting a further deadline. 
The limitation period shall restart for parts that are newly delivered or repaired by the supplier as rectification unless the supplier has recognisably acted out of goodwill. 

§8 Acceptance

If we have ordered a contractual service, the contractor bears the risk of accidental loss or accidental deterioration of the work until the time of acceptance. Acceptance is effected by our countersigning a written acceptance report.
We are entitled to refuse acceptance in the event that significant defects are found.

§9 Termination

In the case of contracts that cover multiple partial services or partial deliveries, we are entitled to terminate the contract at any time until the service or delivery has been rendered in full unless such termination would constitute undue hardship for the supplier. A loss of profit for the suppliers related to partial services not yet rendered does not constitute undue hardship. We shall reimburse expenses and pro rata profit for services already rendered.

§10 Confidentiality

The supplier is obliged to keep all information or knowledge that they receive in connection with the order placed by us confidential. They must pass this obligation on to their employees and subcontractors. In the event of violation, the supplier will bear the resulting damages. This obligation continues even after conclusion of the activities. In the event of violation, the supplier is obliged to pay compensation. Furthermore, we are then entitled to terminate the contract without notice and without affecting other rights. 

§11 Place of jurisdiction and applicable law

If the supplier is a merchant, our registered office in Kiel, Germany is the place of jurisdiction. We are also entitled to sue the supplier at the court of their place of residence. The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

Gebr. Schröder GmbH - Date: 2021

§1 General

1. Our general terms and conditions apply to all our current and future deliveries and services including consultancy services that we provide to companies, legal entities under public law or special funds under public law as stipulated by section 310 (1) of the German Civil Code. They apply to all future transactions with the customer if they are legal transactions of a related nature and even if they are not expressly referred to again in individual cases.

2. These general terms and conditions apply exclusively. Conflicting or deviating terms and conditions of the customer do not apply even if we provide the service in the knowledge of conflicting or deviating terms and conditions of the customer and without us having objected to the customer’s terms and conditions. 

§2 Offers and conclusion of contracts

1. The offers made by us in catalogues, online and in sales documents are subject to change, i.e. they are only to be understood as an invitation to submit an offer. Unless otherwise agreed, a contract shall only be concluded by order confirmation or delivery.

2. If we expressly agree to the cancellation of a binding order, the customer must pay us 10% of the order amount even if we do not expressly repeat this when cancelling the order. The exception to this is if the customer was entitled to withdraw from the contract without our consent or can prove that our damages were lower as a result of the cancelled order.

3. Our references must always be indicated in all correspondence to facilitate correspondence and prevent misunderstandings. In particular, the customer is obliged to state our order confirmation number on all documents. The customer is responsible for all consequences arising from non-compliance with these obligations (delays, incorrect or returned deliveries etc.).

§3 Documents provided

We reserve the right of ownership and copyright to all illustrations, drawings, calculations and other information provided to the customer in connection with placing an order. They must not be made accessible to third parties unless we have expressly authorised their disclosure to third parties in advance. 

§4 Prices and payment

1. Unless otherwise agreed in individual contracts, our prices are based on the price list valid at the time the order is accepted. This price list will be made available on request. 

2. Prices are quoted ex works plus VAT and additional costs such as packaging and insurance. Prices are shown in euros and must be paid to one of our accounts in full, i.e. without deduction of further bank charges. The place of payment is Flintbek, Germany.

3. If we subsequently establish that there is an obvious error in our invoices or that incorrect prices or ancillary costs not based on an incorrect calculation were used by mistake, we can demand the payment of the difference retrospectively. If an error of this kind results in a difference in the customer's favour, the customer is also entitled to reclaim the difference.

4. If more than four months elapse between the conclusion of the contract and the delivery date envisaged for the entire delivery or parts thereof and if costs for the delivery item increase by more than 5% after the conclusion of the contract, in particular due to price increases imposed by our suppliers, we shall be entitled to increase the price for the parts of the overall delivery that are scheduled for delivery after the expiry of four months by a commensurate amount (i.e. to the extent of the increase in our purchase costs). If the price increase claimed by us amounts to more than 5% of the price of the total delivery, the customer is entitled to withdraw from the contract within two weeks of receiving our notification of the price change.

5. Unless otherwise agreed, our claim shall become due upon delivery (pro rata in the case of partial delivery). 

6. Payment must be made within 30 days of the due payment date and receipt of the invoice. Payment must be made without any deduction, in particular no discounts or payment transaction costs may be deducted. If payment is made by bank transfer, the date of unreserved credit to our account is the relevant payment date. Cheques and bills of exchange are only accepted in lieu of payment. The acceptance of bills of exchange also requires special agreement. Discount charges, stamp duty and other exchange charges will be borne by the customer and are payable immediately after being posted.

7. In the event of late payment, we are entitled to charge interest on arrears for the year at a rate of 8 percentage points above the base rate. If we are able to prove a higher level of damage caused by the delay, we are also entitled to claim for this.

8. The customer is only entitled to offsetting rights and rights of retention if their counterclaims have been legally established, are undisputed or have been recognised by us.

§5 Delivery period

1. Delivery dates confirmed by us are non-binding unless they are expressly designated as binding in written form as a minimum requirement.

2. Our own delivery obligation is subject to complete, correct and punctual deliveries being made to us if we purchase the goods as a whole or parts of the goods from a subcontractor. This shall not apply if we are responsible for the failure to deliver or delayed delivery.

3. We can only comply with delivery deadlines if the customer fulfils their contractual obligations in good time. The delivery period commences after all details of the order have been clarified and all information required for the execution of the order and other information to be provided by the customer has been received and, if agreed, after a corresponding advance payment has been received. The delivery deadline shall be deemed to have been met if the goods leave our factory at the agreed time. The delivery deadline is also deemed to have been met if the customer is notified that the goods are ready for dispatch but that the goods cannot be dispatched on time through no fault of our own.

4. The delivery period will be extended appropriately in the event of measures that are not recognisably imminent connected to labour disputes or in the event of unforeseen obstacles that are beyond our control if such obstacles have a significant influence on order completion or delivery of goods. 

5. Default shall only be deemed to have occurred after we receive a written reminder even if the time of performance has been determined according to the calendar or calculated for a certain time after a preceding event. If our delivery is delayed, the customer must grant us a reasonable grace period. This must be at least two weeks long.

§6 Delivery

1. Unless otherwise stated in the order confirmation, delivery is made from our plant in Flintbek (place of fulfilment). The risk of accidental loss or accidental deterioration passes to the customer when the goods are handed over to the forwarding agent, carrier or other transport person, including the customer's own carrier. This applies regardless of whether the goods are dispatched from the place of fulfilment or which party bears the freight costs. If dispatch is delayed due to circumstances for which we are not responsible, risk passes to the customer upon notification of readiness for dispatch.

2. The customer is obliged to accept partial deliveries to a reasonable extent. The customer is also deemed to be in default of acceptance if we only offer delivery to them in writing and if other conditions for default of acceptance exist.

3. We may refuse delivery if it becomes apparent that our claim to consideration is jeopardised by doubts about the customer's creditworthiness after conclusion of the contract. Doubts about the customer's creditworthiness are justified in particular by the following circumstances: Application for the opening or commencement of insolvency, composition or bankruptcy proceedings, individual enforcement of judgement, bill or cheque protests, presentation of uncovered cheques, false information from the customer about their creditworthiness or unfavourable information from approved credit agencies. Our right to refuse performance will lapse if the consideration is paid or security provided for it. We are entitled to set a reasonable period within which the customer must, at their own discretion, either pay the consideration or provide security on delivery. We are entitled to withdraw from the contract after the deadline has expired without any result.

§7 Condition of the goods

1. Details of our goods are only statements of quality unless they are expressly named as being guarantees.

2. Impairments due to natural wear and tear, incorrect or negligent handling or excessive use do not constitute defects.

3. The customer alone is responsible for complying with statutory, official and trade association regulations when using our goods.

§8 Liability for defects

1. Claims for defects can only be made by the customer if they have properly fulfilled their obligations to inspect and give notice of defects in accordance with section 377 of the German Commercial Code (HGB). Notification of defects must be made in writing. Notification of recognisable defects must be made within five working days of receipt of the goods at the latest. Notification of hidden defects will only be deemed to have been made in a timely manner if they are made within five working days of discovery.

2. If the goods have a defect for which we are responsible, we are entitled to rectify the situation by remedying the defect or supplying a replacement at our discretion. In the event of rectification, the customer will bear any additional costs incurred by moving the delivered goods to a location other than their location after the defect became known.

3. Defects in partial deliveries only entitle the customer to withdraw from the overall contract if the remaining partial deliveries are demonstrably of no interest to them.

4. Claims for defects that are not aimed at compensatory damages shall expire one year after delivery. This does not apply in the event of a wilful breach of duty, a breach of guarantee or in cases where sections 438 para. 1 (2), 634a para. 1 (2) of the German Civil Code apply.

5. If we are liable by law within the scope of entrepreneur’s recourse, the provisions of sections 478, 479 of the German Civil Code take precedence.

6. The provisions of section 8 also apply to claims for defects that are aimed at compensatory damages.

§9 Limitation of claims for damage

1. Claims for damage against us or our vicarious agents are excluded in the event of slightly negligent breaches of obligations that are not essential to the contract. Liability for slightly negligent breaches of significant contractual obligations is limited to the foreseeable damage typical of the contract and is limited to €500,000.

2. Claims for damages against us or our vicarious agents lapse after one year in the event of slightly negligent breaches of duty. This does not apply to claims for damages due to a defect as stipulated in section 438 para. 1(2) and section 634a para. 1(2) of the German Civil Code.

3. The exclusions and limitations of liability listed above do not apply if guarantees are breached or in the event of injury to life, limb or health.

4. If we or our vicarious agents are compulsorily liable for property damage or personal injury caused by a product defect as stipulated by the Product Liability Act, the provisions of the Product Liability Act shall also take precedence. The above provisions shall apply in the case of internal settlement as stipulated by section 5(2) of the Product Liability Act.

§10 Retention of title

1. The delivered goods remain our property until our purchase price and all other receivables to which we are entitled from the customer are paid in full. The retention of title shall remain in force even if some of our claims are included in a current account and the balance has been settled and acknowledged. Our reservation of title shall guarantee the accepted balance.

2. The customer hereby assigns to us their claim and all ancillary rights from the resale of our reserved goods as security for all claims to which we are entitled from the customer at the time of resale. 

3. The customer is authorised to assign the claim from resale within the framework of genuine factoring provided that we are notified of this assignment in advance and the factoring proceeds reach at least the value of our goods subject to retention of title. The customer assigns to us the receivables and other claims against the factor from the sale of the receivables assigned to us by way of security; like these, they serve to secure our claims. We hereby accept the aforementioned assignments.

4. If the realisable value of the claims assigned to us as security exceeds our claims against the customer by more than 10%, we are obliged to release any additional security at the customer’s request.

5. The customer is authorised to collect the assigned receivables on our behalf. However, this authorisation will expire if the customer is in default of payment to us. In this case, we are authorised to inform the customer's purchaser of the assignment on behalf of the customer. The customer is obliged to provide us with the information necessary to assert our rights against their customers, in particular to name the customers and to hand over the necessary deeds and documents.

6. The customer is only authorised to resell our reserved goods within the scope of their normal business transactions and only on condition that the purchase price claim from the resale is transferred to us in accordance with section 9 (2). This authorisation will expire if the customer is in default of payment to us. The customer is not authorised to dispose of the reserved goods in any other way, in particular to pledge them or assign them as security.

7. The customer is obliged to adequately insure our reserved goods against loss and damage due to fire, theft, water or similar risks and to provide us with evidence of the insurance cover on request. The customer hereby proportionately assigns to us their claims for compensation to which they are entitled against insurance companies or other parties that are obliged to pay compensation. We must be notified of any impairment of or third-party access to our goods that are subject to retention of title.

8. If the resale authorisation expires, the customer is obliged at our request to provide us with information about the stock of our goods subject to retention of title and the goods in our ownership and co-ownership in line with section 9 (2).

9. Furthermore, we are entitled to freely utilise the goods subject to retention of title handed over to us to satisfy our claims as soon as we have withdrawn from the contract.

10. If the delivery is cross-border and the respective foreign law does not recognise the German retention of title in this form, the parties hereby agree on a comparable security provision that is permissible under the respective national law (e.g. UK: retention of ownership). If the parties must take further actions (registration, deeds), the customer is obliged to co-operate in providing the security at our request. 

§11 Written form, jurisdiction and applicable law

1. All agreements between us and the customer, in particular collateral agreements and contract amendments, must be agreed in writing.
 
2. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with the legal relationship, including documentary proceedings and counterclaims for both parties, shall be Kiel, Germany. However, we are also entitled, at our own discretion, to sue the customer at any other place of jurisdiction established for them.

3. All legal relations with the customer shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).