Legal

Delivery and Payment Terms

Delivery and Payment Terms of Scheddin Industrievertretung GmbH, 47574 Goch / Germany.

This is a non-binding English translation. In the event of any discrepancy, the German version prevails.

§ 1 Scope

All deliveries, services and offers of the Industrievertretung GmbH are made exclusively on the basis of these General Delivery Conditions. They form an integral part of all contracts that the Industrievertretung GmbH (hereinafter also referred to as the “Contractor”) concludes with its contractual partners (hereinafter also referred to as the “Customer”) regarding the deliveries or services offered by it. They also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.
Terms and conditions of the Customer or of third parties shall not apply, even if the Contractor does not separately object to their validity in an individual case. Even if the Contractor refers to a letter that contains or refers to terms and conditions of the Customer or a third party, this shall not constitute agreement with the validity of those terms and conditions.

§ 2 Offer and conclusion of contract

All offers of the Contractor are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders of the Customer require written acceptance by the Contractor. The Contractor may accept orders or commissions within fourteen days of receipt.
The sole authority for the legal relationships between Contractor and Customer is the delivery contract concluded in writing, including these General Delivery Conditions. Verbal assurances given before conclusion of the contract are legally non-binding; verbal agreements are replaced by the written contract. Additions and amendments require the written form to be effective. Transmission by fax is sufficient to comply with the written form; otherwise, transmission by telecommunication, in particular by e-mail, is not sufficient.
Information on the subject matter of the delivery (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations and sample and specimen rolls are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity and this has been assured. Customary deviations as well as deviations due to legal provisions or technical improvements are permissible, provided they do not impair usability.
Print and/or production templates, samples and specimens submitted to the Customer must be checked by the Customer, including with regard to all essential characteristics. The Customer must return the documents signed as a sign of consent. Desired corrections and recognisable defects must be clearly indicated.
The Contractor retains title or copyright to all offers, cost estimates, drawings, illustrations, calculations, brochures, catalogues, models, tools, samples and specimens. The Customer may neither make these accessible to third parties nor use or reproduce them itself without express consent.
Sketches, drafts and other preliminary work ordered by the Customer may be charged by the Contractor even if no order is subsequently placed.

§ 3 Prices and payment

The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services are charged separately. The prices are understood in EURO ex manufacturer, plus packaging, statutory value-added tax, and in the case of export deliveries customs duties as well as fees and other public charges.
Insofar as the agreed prices are based on the Contractor's list prices and the delivery is not to be made until more than four months after conclusion of the contract, the list prices valid at the time of delivery apply (in each case less an agreed discount).
Invoice amounts are to be paid within thirty days without any deduction, or within 14 days with a 2 % discount, from the respective invoice date, unless otherwise agreed in writing. The date of payment is determined by receipt by the Contractor. Cheques are only deemed payment after being cashed. If the Customer fails to pay when due, the outstanding amounts shall bear interest from the due date at 8 percentage points above the base rate p.a.; the assertion of higher interest and further damages remains unaffected.
Offsetting against counterclaims of the Customer or the withholding of payments is only permissible insofar as the counterclaims are undisputed or have been established with final legal effect.
The Contractor is entitled to carry out outstanding deliveries only against advance payment or the provision of security if, after conclusion of the contract, it becomes aware of circumstances that are liable to substantially reduce the creditworthiness of the Customer.

§ 4 Delivery and delivery time

Deliveries are made ex manufacturer.
Periods and dates envisaged always apply only approximately, unless a fixed period or a fixed date has been expressly assured. If dispatch has been agreed, delivery periods refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
The Contractor may demand an extension of delivery and performance periods by the period during which the Customer fails to meet its contractual obligations or fails to meet them on time. If changes are agreed after the order confirmation, the delivery period shall be extended accordingly.
The Contractor is not liable for impossibility or delays due to force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, official measures or the failure of upstream suppliers to deliver on time) that it is not responsible for. In the case of a permanent impediment, the Contractor is entitled to withdraw; in the case of a temporary impediment, the periods are extended accordingly. If acceptance is unreasonable for the Customer as a result of the delay, it may withdraw by immediate written declaration.
The Contractor is entitled to make partial deliveries if the partial delivery is usable for the Customer, delivery of the remaining goods is ensured and no significant additional expense is incurred.
If the Contractor is in default with a delivery or if it becomes impossible for it, liability for damages is limited in accordance with § 8.

§ 5 Place of performance, dispatch, packaging, passing of risk, acceptance

The place of performance for all obligations is Goch, unless otherwise determined. If the Contractor also owes the installation, the place of performance is the place of installation.
The type of dispatch and the packaging are at the dutiful discretion of the Contractor.
The risk passes to the Customer at the latest upon handover of the item of delivery (the start of the loading process being decisive) to the forwarder or carrier. If dispatch is delayed for a reason attributable to the Customer, the risk passes from the day on which the Contractor is ready for dispatch and has given notice thereof.
Storage costs after the passing of risk are borne by the Customer. In the case of storage by the Contractor, the storage costs amount to 0.25 % of the invoice amount per week elapsed; further or lower storage costs are reserved.
The consignment is only insured against theft, breakage, transport, fire and water damage or other insurable risks at the express request and at the expense of the Customer.
Insofar as an acceptance is to take place, the delivered item is deemed to have been accepted when the delivery is completed, the Contractor has given notice of this with reference to the fiction of acceptance, twelve working days have passed since delivery (or the Customer has begun use and six working days have passed), and the Customer has not withheld acceptance due to a notified material defect.

§ 6 Warranty

The warranty period is 6 months from delivery or, insofar as acceptance is required, from acceptance. The Contractor points out that the products sold should, due to their nature, generally be processed within 6 months of delivery. The storage instructions must be observed.
The delivered items must be inspected carefully immediately after delivery. They are deemed approved unless a notice of defect regarding obvious defects is received within seven working days of delivery, or within seven working days of the discovery of hidden defects, in the prescribed form. Upon request, the item complained of must be returned carriage-paid; in the case of a justified complaint, the Contractor reimburses the costs of the most economical shipping route.
In the case of material defects, the Contractor is, at its option, first obliged and entitled to remedy the defect or to make a replacement delivery. In the event of failure, the Customer may withdraw from the contract or reasonably reduce the delivery price.

Over- or under-deliveries that deviate in weight and/or area from the order cannot be avoided in the production process. To the extent set out below, they do not constitute poor performance or defects; the quantities actually delivered are charged in each case:

Delivery quantity	Permissible tolerance
up to 99 kg or 999 sqm	+/- 50 %
100 – 999 kg or 1,000 – 9,999 sqm	+/- 30 %
1,000 – 4,999 kg or 10,000 – 59,999 sqm	+/- 20 %
over 5,000 kg or over 60,000 sqm	+/- 15 %

If a defect is based on the fault of the Contractor, the Customer may demand damages under the conditions set out in § 8.
In the case of defects in components of other manufacturers that the Contractor cannot remedy for licensing or actual reasons, the Contractor will, at its option, assert its warranty claims against the manufacturers for the account of the Customer or assign them to the Customer. Claims against the Contractor exist only if the judicial enforcement against the manufacturer is unsuccessful or futile.
The warranty lapses if the Customer changes the item of delivery, or has it changed, without consent, and the remedy of the defect is thereby rendered impossible or unreasonably difficult. Additional costs of remedying the defect caused by the change are borne by the Customer.
In the case of contract-manufacturing orders, the Contractor assumes no liability for defects in the goods supplied by the Customer.
A delivery of used items agreed in an individual case is made under exclusion of any warranty.

§ 7 Industrial property rights

The Contractor warrants that the item of delivery is free from industrial property rights or copyrights of third parties. Each contracting party shall notify the other immediately in writing if claims are asserted due to such an infringement.
If the item of delivery infringes a third party's property right, the Contractor will, at its option and at its expense, modify or exchange the item or obtain a right of use. If this does not succeed within a reasonable time, the Customer may withdraw or reduce the price. Claims for damages are subject to the limitations of § 8.
In the case of infringements of rights by products of other manufacturers, the Contractor will assert its claims against the manufacturers for the account of the Customer or assign them. Claims against the Contractor exist only if enforcement against the manufacturers is unsuccessful or futile.

§ 8 Liability for damages due to fault

The Contractor's liability for damages, on whatever legal grounds, is – insofar as fault is relevant – limited in accordance with this § 8.
The Contractor is not liable (a) in the case of simple negligence of its bodies, legal representatives, employees or vicarious agents; (b) in the case of gross negligence of its non-managerial employees or vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material to the contract are the obligation to deliver on time and free of defects as well as advisory, protective and custodial duties.
Insofar as the Contractor is liable in principle, liability is limited to foreseeable damage typically occurring. Indirect damage and consequential damage are only compensable insofar as they are typically to be expected in the case of intended use.
In the case of liability for simple negligence, the obligation to compensate for property damage or personal injury is limited to an amount of EUR 10 million per claim (corresponding to the current coverage amount of the product liability or liability insurance).
The above exclusions and limitations of liability apply to the same extent in favour of the bodies, legal representatives, employees and vicarious agents of the Contractor.
Insofar as the Contractor provides technical information or acts in an advisory capacity that does not belong to the contractually agreed scope of services, this is done free of charge and under exclusion of any liability.
The limitations of this § 8 do not apply to liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health, or under the German Product Liability Act.

§ 9 Retention of title

The retention of title agreed below serves to secure all present and future claims of the Contractor against the Customer arising from the existing delivery relationship for silicone-coated paper and films.
The goods delivered remain the property of the Contractor until full payment of all secured claims (reserved goods).
The Customer stores the reserved goods free of charge for the Contractor.
The Customer is entitled to process and sell the reserved goods in the ordinary course of business until the event of realisation. Pledges and transfers by way of security are inadmissible.
In the case of processing, this is carried out in the name and for the account of the Contractor as manufacturer; the Contractor directly acquires (co-)ownership of the newly created item in the ratio of the value of the reserved goods. Otherwise, the Customer already now transfers its future (co-)ownership by way of security.
In the case of resale, the Customer already now assigns the resulting claim against the purchaser to the Contractor by way of security. The Contractor authorises the Customer, revocably, to collect the assigned claims; revocation is only permissible in the event of realisation.
If third parties access the reserved goods (in particular by seizure), the Customer will immediately point out the Contractor's ownership and inform the Contractor.
The Contractor releases the reserved goods, or the items or claims replacing them, upon request, insofar as their value exceeds the secured claims by more than 30 %.
If the Contractor withdraws from the contract in the event of conduct by the Customer contrary to the contract – in particular default of payment – (event of realisation), it is entitled to demand the return of the reserved goods.

§ 10 Other provisions

The Contractor reserves the right to affix its company text, its company logo or its business identification number to deliveries of all kinds, in accordance with the relevant practices and regulations and the space available.

§ 11 Final provisions

The place of jurisdiction for all possible disputes is, at the Contractor's option, Kleve or the registered office of the Customer. For actions against the Contractor, Kleve is the exclusive place of jurisdiction. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected.
The relationships between Contractor and Customer are governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
Insofar as the contract or these General Delivery Conditions contain gaps, those legally effective provisions shall be deemed agreed to fill them which the contracting parties would have agreed in accordance with the economic objectives of the contract had they been aware of the gap.
The Customer is advised that the Contractor stores data from the contractual relationship in accordance with the provisions of the German Federal Data Protection Act and reserves the right to transmit the data to third parties (e.g. insurers), insofar as this is necessary for the performance of the contract.

Scheddin Industrievertretung GmbH – Am Sandthof 12, 47574 Goch / Germany · As of: March 2016