General Terms and Conditions of Sale and Delivery
SCHUMACHER GmbH . Siegener Straße 10 . 57612 Eichelhardt/Germany
1.1. These General Terms and Conditions of Sale and Delivery (hereinafter referred to as the “GTC”) shall apply to all business dealings with our customers (hereinafter also referred to solely as the “Customer”), in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to solely as “Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers, and to contracts for other services.
1.2. Our GTC shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Sale and Delivery of the Customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example, even if we carry out the delivery to the customer unconditionally with the knowledge of the Customer’s general terms and conditions.
1.3. Individual agreements made with the Customer in individual cases shall take precedence in all cases.
2. Offers and contract formation
2.1. Our offers are subject to confirmation and non-binding, unless they are expressly characterised as binding or contain a specific acceptance period. Catalogues, price lists, technical documentation and other product descriptions or documents do not constitute an offer.
2.2. The order of the goods by the Customer is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within two (2) weeks of its receipt by us. Acceptance can either be indicated in writing (e.g. by order confirmation) or by delivery of the goods to the Customer.
2.3. We reserve the right to make changes in design or form due to further development of technology or statutory provisions, provided that the object of the order is not significantly changed and the changes are reasonable for the Customer.
3. Prices, terms of payment, payment default and set-off
3.1. Our prices include the statutory value added tax; however, packaging, delivery and shipping costs are only included in our prices if a separate agreement is made concerning this.
3.2. In principle, our claims are due and payable without deduction immediately following receipt of the invoice. However, we are entitled at any time, even as part of ongoing business dealings, to carry out a delivery in whole or in part only against advance payment. We will indicate a corresponding reservation at the time of the order confirmation at the latest.
3.3. At the latest 30 days after invoicing, the Customer shall be deemed in default without a reminder being required. During the period of default, the purchase price shall bear interest at the statutory default interest rate applicable at the time. We reserve the right to assert further damages due to delay. Our claim to commercial default interest (§ 353 of the German Commercial Code) against merchants remains unaffected.
3.4. The Customer may only offset our claims against undisputed or legally established claims. The Customer’s counter rights shall remain unaffected in the event of a defective delivery. The Customer may only assert rights of retention on the basis of counter-claims arising from the same contractual relationship.
4. Dispatch, delivery scope and deadlines, packaging
4.1. The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer upon delivery at the latest. If the Customer is a merchant within the meaning of the German Commercial Code or an entrepreneur within the meaning of § 14 of the German Civil Code, the risk of accidental loss and accidental deterioration in a sale involving the carriage of goods shall pass upon delivery of the goods to the forwarding agent, carrier or other person or institution designated to carry out the order.
4.2. In the event of a sale involving the carriage of goods, the Customer shall bear the ex store shipping costs and the costs of any transport insurance it requires.
4.3. The scope of delivery is defined by our written order confirmation. Partial deliveries and partial performance are permissible within the delivery periods if the partial delivery is usable for the Customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Customer does not incur considerable additional work or additional costs as a result (unless we indicate our willingness to assume these costs).
4.4. The delivery period begins with the dispatch of the order confirmation, but not before the provision of any documents, permits, releases to be procured by the Customer and not before receipt of an agreed down payment.
4.5. Where we are unable to comply with binding delivery periods for reasons not imputable to us, we shall inform the Customer of this immediately and shall simultaneously communicate the expected new delivery period. We shall not be liable for the impossibility of delivery or for delivery delays if these are caused by force majeure or other events not foreseeable at the time of the contract’s conclusion (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in procuring necessary official permits, official measures or the failure to deliver, incorrect delivery or late delivery by suppliers) for which we are not responsible. We shall be entitled to withdraw from the contract if such events substantially impede or render impossible delivery or performance for us and the hindrance is not only of a temporary nature. If the transaction is with a consumer, we will reimburse the consumer for any consideration received. In the event of hindrances of a temporary nature, the delivery or service periods shall be extended or the delivery or service dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If acceptance of the delivery or service cannot reasonably be expected of the Customer as a result of the delay, it may withdraw from the contract by sending us an immediate written declaration.
4.6. Regarding sales involving the carriage of goods (§ 447 of the German Civil Code), postage and packaging costs shall be invoiced separately. We will only consider accepting the return of packaging if the packaging is in perfect condition. Our agreement to the return can only be assumed if the packaging is returned carriage paid.
5. Retention of title
5.1. The following applies with respect to consumers within the meaning of § 13 of the German Civil Code:
a) Goods for which payment is made in advance are not subject to retention of title.
b) Other than that, we reserve the right of ownership of the delivered goods until the purchase price has been paid in full.
5.2. The following applies with respect to a merchant within the meaning of the German Commercial Code, an entrepreneur within the meaning of § 14 of the German Civil Code, public law legal entities and special funds:
a) We reserve title to the goods sold until the purchase price has been paid in full. Our assertion of the retention of title as well as the attachment of the goods shall not constitute a withdrawal from the contract, unless we expressly declare this in writing or we demand the return of the delivery items.
b) The Customer shall keep goods delivered subject to retention of title carefully for us and shall insure them adequately against damage risks at its own expense. Upon conclusion of the service or delivery order, the Customer shall be deemed to have assigned to us its claims arising from the insurance contracts in the event of damage. We hereby accept the assignment.
c) The goods subject to retention of title may not be pledged to third parties or assigned as security before the purchase price has been paid in full. The Customer shall notify us immediately in writing if a petition for the opening of insolvency proceedings is filed or if third parties have access (e.g. attachment) to the goods belonging to us.
d) Until revocation according to (3) below, the Customer may resell and/or process the goods subject to retention of title in the ordinary course of business. In this event, the following provisions shall apply supplementally.
(1) The retention of title extends to the full value of the products resulting from the processing, commingling or combination of our goods, whereby we shall be deemed the manufacturer. If a third-party right of ownership arises in the event of processing, commingling or combination with their goods, we shall acquire co-ownership in proportion to the invoice values of the processed, commingled or combined goods. Other than that, the same provisions apply to the resulting product as to the goods delivered subject to retention of title.
(2) The Customer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product, in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We hereby accept the assignment.
(3) Both we and the Customer are authorised to collect the claim. We undertake not to collect the claim as long as the Customer fulfils its payment obligations towards us and its ability to perform is not limited. However, if this is the case, we can require the Customer to inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the Customer’s authority to resell and process the goods subject to retention of title.
(4) If the realisable value of the security exceeds our claims by more than 10%, we will release security of our choice at the Customer’s request.
6.1. Unless otherwise specified below, the statutory provisions shall apply to the Customer’s rights in the event of material defects and defects of title.
6.2. The primary basis of our liability for defects is the agreement reached on the quality of the goods. All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly known to us (in particular in catalogues or on our Internet homepage) at the time of the contract’s conclusion shall be deemed to be an agreement on quality.
6.3. Where no agreement on quality has been made, a determination as to the presence or absence of a defect shall be undertaken in accordance with statutory provision (§ 434(1), sentence 2 and 3 of the German Civil Code).
6.4. As a matter of principle, we shall not be liable for defects which were known to the Customer at the time of the contract’s conclusion or of which it was not aware due to gross negligence (§ 442 of the German Civil Code). In all cases, damage attributable to natural wear and tear, improper use and lack of or incorrect care is excluded from the warranty.
6.5. If the Customer is a merchant within the meaning of the German Commercial Code or an entrepreneur within the meaning of § 14 of the German Civil Code, the Customer’s claims for defects presuppose its prior compliance with its statutory duties of inspection and notification of defects (§§ 377, 381 of the German Commercial Code). We are to be immediately notified in writing if a defect is discovered during delivery, inspection or at any subsequent time. In any case, obvious defects shall be reported in writing within seven (7) working days of delivery and defects not apparent during inspection shall be reported in writing within the same period from the time of discovery. If the Customer fails to carry out the proper inspection and/or notification of defects, our liability for the defect not notified or not notified in time is excluded in line with statutory provisions.
6.6. If the delivered goods are defective, in principle we will provide subsequent performance in accordance with statutory provisions. In line with statutory provisions, we shall bear and reimburse the expenses necessary for the purpose of testing and subsequent performance, in particular transport, travel, labour and material costs as well as installation and removal costs.
6.7. The Customer may withdraw from the contract or reduce the purchase price if the subsequent performance is unsuccessful or a reasonable deadline to be set by the Customer for the subsequent performance has expired unsuccessfully or, in accordance with statutory provisions, is superfluous. However, no right of withdrawal accrues in the event of an insignificant defect.
6.8. The general prescription period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the prescription period shall commence upon acceptance.
7.1. Unless otherwise stated in these GTC, in line with statutory provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations.
7.2. We shall be liable for damages – irrespective of the legal grounds – within the scope of liability for wilful intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. due care in our own affairs, minor breaches of duty)
a) for claims resulting from death, physical injury or illness;
b) for claims resulting from the breach of an essential contractual obligation (an obligation whose fulfilment renders possible the contract’s proper execution in the first place and upon whose fulfilment the contractual partner routinely relies and may rely). However, in this case, our liability is limited to foreseeable and typically occurring damage.
7.3. The limitations of liability resulting from 7.2. also apply to breaches of duty by or in favour of persons whose fault is imputable to us in line with statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for the Customer’s claims under the Product Liability Act.
8. Personal data
8.1. The Customer shall use personal data in accordance with statutory provisions.
8.2. We will only use personal data in accordance with statutory provisions. In particular, personal data will only be used with the consent of the persons concerned and with reference to their informal right of withdrawal at any time.
9. Place of performance, place of jurisdiction and applicable law
9.1. To the extent statutorily permissible, our registered office shall be the place of performance.
9.2. If the Customer is a merchant within the meaning of the German Commercial Code, a public law legal entity or a public law special fund, our registered office shall be the exclusive as well as the international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the Customer is an entrepreneur within the meaning of § 14 of the German Civil Code. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or, in accordance with a prior individual agreement, at the Customer’s general place of jurisdiction. Overriding legislation, in particular those concerning exclusive jurisdiction, shall remain unaffected.
9.3. These GTC and the contractual relationship between us and the Customer shall be governed by the law of the Federal Republic of Germany to the exclusion of conflict of laws and international uniform law, in particular the United Nations Convention on the International Sale of Goods (CISG).
Version Date: 05/ 2020