Schäfer - Terms and Conditions

Terms & Conditions of Purchase

Terms & Conditions of Sale

	JOHANNES SCHÄFER GmbH & Co. KG - T E R M S & C O N D I T I O N S O F P U R C H A S E

Section 1 – SCOPE OF APPLICATION
(1)	Our terms and conditions of purchase apply exclusively and to all present and future business relations with the supplier/contractual partner (hereinafter referred to as "contractual partner").
(2)	We do not recognise any terms and conditions of the contractual partner which conflict with, deviate from or are additional to our terms and conditions of purchase, unless we expressly agree with their validity in writing. (Counter-)confirmations of the customer with reference to his terms and conditions are hereby contradicted.
(3)	Our terms and conditions of purchase shall also apply if we accept the order confirmations or deliveries or contractual services of the contractual partner without reservation in the knowledge of deviating terms and conditions of the contractual partner. By executing the order without contradiction, the contractual partner declares his agreement with these terms and conditions of purchase.
(4)	Our terms and conditions of purchase shall only apply to companies within the meaning of sec. 310 para. 1 BGB (German Civil Code).

Section 2 – ORDERS
(1)	Supply contracts (order and acceptance) and delivery call-offs as well as their amendments and supplements must at least be in text form.
(2)	If the contractual partner does not accept the order within 5 working days of receipt, we shall be entitled to cancel the order. Delivery call-offs become binding at the latest if the supplier does not object within 5 working days of receipt.
(3)	Within the scope of what is reasonable for the contractual partner, we can demand changes to the construction and design of the delivery item. In doing so, the effects, in particular with regard to additional and/or reduced costs and the delivery dates, must be taken into account appropriately and, if necessary, settled by mutual agreement.

Section 3 – TERMS OF DELIVERY
(1)	Unless otherwise agreed, the contractual partner shall bear the risk and costs of transport including packaging, insurance and all other ancillary costs.
(2)	Agreed dates and deadlines are binding. The receipt of the goods by us is decisive for compliance with the delivery date or delivery period. If something other than delivery "free works" has been agreed, the contractual partner shall make the goods available timely, taking into account the usual time for loading and dispatch.
(3)	If it becomes apparent to the contractual partner that delivery deadlines cannot be met, we must be informed of this immediately in text form, stating the reasons. Any claims for compensation for damages caused by delay shall remain unaffected by this.

Section 4 – TERMS OF PAYMENT
(1)	Unless otherwise agreed, payment shall be made within 10 working days of receipt of the delivery by us, with a 2% discount, or within 30 days net, provided that we have received a corresponding, properly generated invoice at that time. In case of acceptance of premature deliveries, the due date shall be determined by the agreed delivery date.
(2)	In the event of defective delivery, we shall be entitled to withhold payment in proportion to the value until proper performance. Besides, payments are made subject to calculatory and price accuracy.
(3)	The contractual partner is not entitled to assign his claims against us or have them collected by third parties without our prior written consent, which may not be unreasonably withheld. In the event of extended reservation of title, such consent shall be deemed to have been given. Otherwise, sec. 354a HGB (German Commercial Code) remains unaffected.

Section 5 – NOTIFICATION OF DEFECTS
	We shall notify the contractual partner immediately of any defects in the delivery as soon as and to the extent that they are detected in the ordinary course of business. In this respect, the contractual partner waives the objection of delayed notification of defects.

Section 6 – UNFORESEEN EVENTS
	Force majeure, in particular labour disputes, riots, epidemics, official measures and other unforeseeable, unavoidable and serious events shall release the contracting parties from their obligations to perform for the duration of the disturbance and to the extent of its effect. This also applies if these events occur at a time when we are in default. The contractual partners will adjust their obligations to the changed circumstances in good faith.

Section 7 – QUALITY AND CONDITIONS, DOCUMENTATION
(1)	Regarding his deliveries the contractual partner must comply with the recognised rules of technology, safety regulations and other legal requirements as well as the agreed technical data or the agreed condition. Changes to the delivery item require our prior written consent.
(2)	Irrespective of this, the contractual partner must constantly check the quality of the delivery items. The contracting parties shall inform each other about the possibilities of quality improvement.
(3)	In regard of features specially marked in the technical documents or by separate agreement, the contractual partner must also record in special records when, in which way and by whom the delivery items have been tested with regard to the special features and which results the required quality tests have produced. The test documents must be kept for at least fifteen years and be presented to us if required. The contractual partner must place upstream suppliers under the same obligation as far as this is legally possible for him.

Section 8 – THIRD PARTY RIGHTS
(1)	The contractual partner shall be liable for claims arising from the infringement or impairment of third party rights, in particular but not exclusively industrial property rights and applications for industrial property rights, when the delivery items are used in accordance with the contract.
(2)	The contractual partner undertakes to indemnify us upon written request from these claims asserted by a third party. This indemnification obligation also applies to all necessary expenses incurred by us from or in connection with the claim by the third party.
(3)	The two preceding paragraphs shall not apply insofar as the contractual partner has manufactured the delivery items in accordance with drawings, models or other comparable descriptions or information provided by us and does not know or, in connection with the products developed by him, does not need to know that this infringes the rights of third parties.
(4)	The contractual partner undertakes to inform us immediately of any infringement risks and alleged infringements that become known to him and to give us the opportunity to counteract such claims by mutual agreement.

Section 9 – WARRANTY
(1)	Our warranty claims against the contractual partner shall be based on the statutory provisions, unless otherwise provided below.
(2)	If the contractual partner is not merely a intermediary, he shall be liable for defects in the delivery items even if he is not at fault.
(3)	The limitation period for claims for defects amounts to 36 months from delivery, unless a longer period is provided by law.
(4)	In cases of particular urgency or if there is a risk of disproportionately high damage, we are entitled to remedy the defect ourselves or have it remedied by third parties at the expense of the contractual partner or procure a replacement from another source. As far as possible and reasonable, this will be done in agreement with the contractual partner, otherwise we will inform the contractual partner immediately of the measures taken.
(5)	The contractual partner shall be liable for supplementary performance actions to the same extent as for the original delivery item. The period of limitation begins with the successful completion of the supplementary performance.
(6)	In the event of a recall action to be carried out by us on the basis of product liability law, the contractual partner shall be obliged to bear a reasonable amount of the costs, unless the costs are to be borne anyway as a result of his statutory warranty obligation.

Section 10 – CONFIDENTIALITY AND RIGHTS TO DOCUMENTS
(1)	The contractual partner undertakes to treat as business secrets all commercial and technical details which are not public knowledge and which become known to him through the business relations.
(2)	Design data, drawings, models, samples and similar items may not be handed over or otherwise made available to unauthorised third parties. The reproduction of such matters is only permitted within the scope of operational requirements and the copyright regulations.
(3)	Subcontractors shall be obligated accordingly.
(4)	We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents which are designated as "confidential". The contractual partner requires our express written consent before passing them on to third parties.
(5)	The contracting parties may only advertise their business relationship with prior written consent.

Section 11 – OTHER
(1)	The place of performance and jurisdiction for both parties is the registered office of our company, Hungen, whereby we reserve the right to bring an action also at the general place of jurisdiction of the supplier.
(2)	The law of the Federal Republic of Germany applies exclusively; the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.

Section 12 – SAFEGUARDING CLAUSE
	Should individual clauses of these terms and conditions of purchase be or become invalid, this shall not affect the validity of the remaining terms and conditions. The parties shall replace the invalid provision by a valid provision which comes closest to the economic content of the invalid provision. The same shall apply in the event of an unintentional loophole in the regulations.

Issue 07/2020
Download	Terms and conditions of purchase [PDF 0,45 MB]

	JOHANNES SCHÄFER GmbH & Co. KG - T E R M S & C O N D I T I O N S O F S A L E

Section 1 – SCOPE OF APPLICATION
(1)	Our terms and conditions of sale apply exclusively and to all present and future business relations with the customer/purchaser.
(2)	We do not recognise any terms and conditions of the customer which conflict with, deviate from or are additional to our terms and conditions of sale, unless we expressly agree with their validity in writing. (Counter-)confirmations of the customer with reference to his terms and conditions are hereby contradicted.
(3)	Our terms and conditions of sale shall apply even if we execute the order of the customer without reservation in the knowledge of deviating terms and conditions of the customer. By accepting the order confirmation without objection, the customer declares his agreement with these terms and conditions of sale. Our terms and conditions of sale shall only apply to companies within the meaning of sec. 310 para. 1 BGB (German Civil Code).

Section 2 – CONCLUSION OF THE CONTRACT
(1)	Our offers are non-binding.
(2)	The order is a binding offer. We can accept this offer at our discretion within two weeks by sending an order confirmation in text form.
(3)	Oral collateral agreements are only binding for us if we confirm them in text form.

Section 3 – SALES PRICES
(1)	Unless otherwise stated in the order confirmation, our prices are in Euro ex works, excluding packaging. Packaging shall be charged at cost price.
(2)	Value added tax at the respective statutory rate shall be added to the prices.

Section 4 – TERMS OF PAYMENT
(1)	Our invoices are due for payment by bank transfer within thirty days of the invoice date without any deductions. If the customer defaults on payment, we shall be entitled to demand interest on arrears at a rate of 5 percentage points above the respective interest rate for long-term refinancing transactions of the European Central Bank (LRG rate). If we are able to prove higher damages caused by default, we are entitled to claim these.
(2)	A payment shall only be deemed to have been made when the amount has been received by us.
(3)	If we become aware of circumstances which put the creditworthiness of the customer into question, in particular if payments by the customer are suspended, we shall be entitled to declare the entire remaining debt due. In addition, we are entitled to demand advance payments or securities.
(4)	The customer is only entitled to offsetting rights if his counterclaims have been finally established, are undisputed or have been recognised by us. He is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

Section 5 – SHIPPING CONDITIONS
(1)	Loading and dispatch are carried out uninsured at the risk and expense of the purchaser. The risk is transferred to the purchaser when the goods are handed over to the shipping or transport company, regardless of whether the company was selected by us or the purchaser.
(2)	If dispatch is delayed due to circumstances for which the customer is responsible or if dispatch is made at the customer's request at a later date than the agreed delivery date, the risk shall pass to the customer on the day of the originally planned shipment date.
(3)	We shall endeavour to take the wishes and interests of the customer into account with regard to the mode and route of dispatch. Any additional costs incurred as a result - even if freight-free delivery has been agreed - shall be borne by the customer. We shall not bear any disposal costs incurred for packaging.

Section 6 – CONFIDENTIALITY
(1)	The contracting parties undertake to treat as business secrets all commercial and technical details which are not public knowledge and which become known to them through the business relations.
(2)	Design data, drawings, models, samples and similar matters and items may not be handed over or otherwise made available to unauthorised third parties. The reproduction of such objects is only permitted within the scope of operational requirements and the copyright regulations.
(3)	Subcontractors shall be obligated accordingly.
(4)	We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents which are designated as "confidential". The contractual partner requires our express written consent before passing them on to third parties.
(5)	The contracting parties may only advertise their business relationship with prior written consent.

Section 7 – DESIGN MODIFICATIONS
	We reserve the right to make design changes at any time; however, we are not obliged to make such changes to products already delivered.

Section 8 – MANUFACTURING TOOLS
(1)	If aids are necessary for order processing, we will request a down payment at short notice.
(2)	In view of our design services, these aids manufactured or procured by us shall remain our property, which shall also not be affected by cost contributions by the customer.
(3)	We do not assume any liability for the usability of goods provided by the customer. Interrupted offers and accepted orders are in these cases considered non-binding in every respect until final clarification of the usability of the product. Repair and maintenance costs as well as the manufacturing risk for the goods shall be borne exclusively by the purchaser.

Section 9 – TERMS OF DELIVERY
(1)	The beginning of the delivery period stated by us requires the clarification of all technical and commercial questions. Compliance with the delivery period presupposes the timely receipt of all documents and order parts by us.
(2)	The delivery period shall be deemed to have been met if by the expiry of the delivery period the delivery item has left the plant or we have notified the readiness for dispatch.
(3)	In the case of so-called custom-made products, we reserve the right of an excess or short delivery of both up to 10 %. The quantities are calculated accordingly. Partial deliveries are permissible, as far as this is reasonable for the customer. In the case of call-off orders, we must be informed of the call-offs in text form at least 6 weeks before the desired delivery date.
(4)	The delivery period shall be extended appropriately - subject to an adjustment of the contract in accordance with sec. 12 of these Terms and Conditions of Sale ("Force Majeure") - in the event of measures in the context of industrial disputes, in particular strikes and lock-outs, as well as in the event of unforeseen obstacles which are beyond our control, insofar as such obstacles demonstrably have a considerable influence on the completion of the delivery of the delivery item. We are not responsible for the above-mentioned circumstances even if they occur during an already existing delay. The beginning and end of such obstacles will be communicated to the customer as soon as possible.
(5)	If an agreed delivery period is exceeded, delivery delay is only given after an appropriate grace period has been set.
(6)	If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of incidential loss or incidental deterioration of the object of sale shall also pass to the customer at the point in time at which the customer is in default of acceptance. Further claims or rights are reserved.

Section 10 – WARRANTY
(1)	We warrant the faultless manufacture of the ordered goods in accordance with the agreed technical delivery specifications. If we have to deliver according to data, drawings, specifications etc. of the customer, the customer bears the risk of suitability for the intended purpose. Decisive for the contractual condition of the goods is the time of the transfer of risk.
(2)	If a certain quality of the goods has been agreed, a deviation from this shall only constitute an insignificant defect as long as the suitability of the goods for the contractually stipulated use is not or only insignificantly impaired. In this case claims for defects are excluded.
(3)	No warranty shall be given for defects caused by unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, normal wear and tear, faulty or negligent treatment, nor for the consequences of improper modifications or repair work carried out by the customer or third parties without our consent.
(4)	The customer may not install or otherwise use objected as well as recognisably defective goods. If he violates this obligation, we shall not be liable for damages resulting from the installation or other use. Furthermore, in this case, the customer shall bear the additional costs incurred in remedying the defect due to the installation or other use or, if applicable, reimburse us.
(5)	Warranty claims of the customer presuppose that the customer has properly fulfilled his obligations to examine the goods and make a complaint in accordance with sec. 377 HGB (German Commercial Code). If an acceptance of the object of sale or an initial sample inspection has been agreed, the notification of defects which the customer could have detected in the course of careful acceptance or initial sample inspection is excluded.
(6)	We must be given the opportunity to establish the defect complained about. The object of purchase complained about shall be returned to us immediately upon our request. We shall bear the transport costs if the notice of defect is justified. If the customer does not comply with these obligations or if he makes changes to the object of sale already complained about without our consent, he loses any warranty claims.
(7)	In the event of justified, timely notification of defects, we shall, at our discretion, either repair the rejected purchased item or deliver a flawless replacement.
(8)	If within a reasonable period of time we fail to comply with these subsequent performance obligations or fail to do so in accordance with the contract, or if the remedy remains unsuccessful, the customer may set us a final deadline in text form within which we must comply with our obligations. After this period has expired without success, the customer may, at his discretion, demand a price reduction, withdraw from the contract or carry out the necessary subsequent improvement himself or have it carried out by a third party at our expense and risk. If the rectification of defects was successfully carried out by the customer or a third party, all claims of the customer shall be finally settled upon reimbursement of the necessary costs incurred by him.

Section 11 – COMPENSATION FOR DAMAGES
(1)	We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our employees, workers, staff, representatives and vicarious agents. In cases of gross negligence, however, liability shall be limited to the foreseeable damage typical for the contract, unless an exceptional case listed in the following paragraphs also exists.
(2)	Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the Product Liability Act (ProdHaftG).
(3)	Furthermore, liability remains unaffected in the event of the assumption of a guarantee or a procurement risk, insofar as these are intended to protect the purchaser against damage which has not occurred to the delivered goods themselves.
(4)	We shall also be liable in accordance with the statutory provisions if we culpably violate an essential contractual obligation; essential contractual obligations are those whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer relies and may rely. In the event of negligent breach of an essential contractual obligation, our liability shall be limited to the foreseeable damage typical for the contract.
(5)	Unless otherwise regulated above, our liability - irrespective of the legal nature of the claim asserted - is excluded. This shall also apply if the customer demands compensation for useless expenses instead of a claim for damages instead of performance.
(6)	Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.

Section 12 – UNFORESEEN EVENTS
	Force majeure, in particular labour disputes, riots, epidemics, official measures and other unforeseeable, unavoidable and serious events shall release the contracting parties from their obligations to perform for the duration of the disturbance and to the extent of its effect. This also applies if these events occur at a time when we are in default. The contractual partners will adjust their obligations to the changed circumstances in good faith.

Section 13 – INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHTS
(1)	Unless otherwise agreed, we are only obliged to make the delivery free of industrial property rights and copyrights of third parties (hereinafter referred to as “property rights”) in the country of the place of delivery. If a third party asserts a justified claim against the purchaser based on an infringement of property rights by the supplies made by us and used in conformity with the contract, we shall be liable to the purchaser pursuant to the following paragraphs.
(2)	We shall, at our discretion and at our expense, either obtain a right of use for the deliveries concerned, modify them so that the property right is not infringed, or replace them. If this is not possible for us under reasonable conditions, the customer shall be entitled to the statutory rights of withdrawal or reduction.
(3)	Our obligation to pay damages shall be governed by sec. 10 and 11 of these terms and conditions.
(4)	The aforementioned obligations shall only apply if the customer informs us immediately in writing of the claims asserted by the third party, does not acknowledge an infringement and leaves all defensive measures and settlement negotiations to our discretion. If the purchaser stops using the supplies in order to reduce the damage or for other good cause, he shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
(5)	Claims of the customer are excluded as far as he is responsible for the infringement of property rights. Claims of the customer are further excluded as far as the infringement of the property right is caused by particular specifications of the customer, by an application not foreseeable by us or by the fact that the delivery is modified by the customer or used together with products not supplied by us.
(6)	In the event of other (legal) defects and otherwise, the provisions of sec. 10 and 11 shall apply accordingly..

Section 14 – RETENTION OF TITLE
(1)	We reserve the title of ownership of the object of sale until all our claims against the customer arising from the business relationship have been fulfilled. The customer is entitled to dispose of the purchased goods in the ordinary course of business.
(2)	The purchaser is permitted to process or transform the delivery item ("processing"). Processing shall be carried out exclusively for us; however, if the value of the delivery item belonging to us is less than the value of the goods not belonging to us and/or the finishing, we shall acquire co-ownership of the new goods in the ratio of the value (gross invoice value) of the processed delivery item to the value of the other processed goods and/or the finishing at the time of processing. Insofar as we do not acquire ownership of the new goods in accordance with the above, the customer is obliged to grant us co-ownership of the new goods in the ratio of the value (gross invoice value) of the delivery item belonging to us to the value of the other processed goods at the time of processing. The above sentence shall apply accordingly in the event of inseparable mixing or combination of the delivery item with goods not belonging to us. Insofar as we acquire ownership or co-ownership according to this provision (reservation of title), the customer shall hold them in safekeeping for us with the due care of a prudent businessman.
(3)	In the event of the sale of the delivery item or the new goods, the customer hereby assigns to us by way of security his claim from the resale against his customer with all ancillary rights, without the need for further special declarations. The assignment applies including any balance claims. However, the assignment shall only apply to the amount corresponding to the price of the delivery item invoiced to us. The portion of the claim assigned to us shall be satisfied with priority.
(4)	Until revocation, the purchaser is authorised to collect the claims assigned to us in accordance with this regulation (reservation of title). The customer shall immediately forward to us payments made on the assigned claims up to the amount of the secured claim. In the event of legitimate interests, in particular default of payment, suspension of payments, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the customer, we shall be entitled to revoke the customer's authority to collect. In addition, we may, after prior warning and subject to a reasonable period of notice, disclose the assignment for security, exploit the assigned claims and demand that the customer discloses the assignment for security to his customers.
(5)	If a legitimate interest is substantiated, the customer must provide us with the information necessary to assert his rights against his customers and hand over the necessary documents.
(6)	We undertake to release the securities to which we are entitled at the request of the purchaser to the extent that the attainable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is at our discretion.
(7)	The goods and the claims taking their place may not be pledged, assigned or transferred by way of security to third parties or before our claims have been paid in full.
(8)	Access by third parties to the goods and claims belonging to us must be reported to us by the customer immediately in text form.
(9)	In the event of breaches of duty by the customer, in particular default in payment, we are entitled, even without setting a deadline, to demand the return of the delivery item or the new goods and/or - if necessary after setting a deadline - to withdraw from the contract; the customer is obliged to surrender the goods. The demand for return of the delivery item/new goods does not constitute a declaration of withdrawal on our part, unless this is expressly declared.

Section 15 – INTRA-COMMUNITY SUPPLY
(1)	In the case of deliveries from the Federal Republic of Germany to other EU member states, the purchaser must inform us before delivery of his VAT identification number under which he is subject to tax on earnings within the EU.
(2)	In addition, both in the case of deliveries as well as collections to another EU member state, the customer is obliged to issue us with a confirmation that the object of an intra-Community delivery to another EU member state has been delivered (confirmation of arrival). This confirmation of arrival must contain the name and address of the purchaser,the quantity of the delivery item and the usual trade description,the indication of the place and month (not day) of the end of transport or dispatch, i.e. of receipt of the goods within the territory of the Community, even in the case of self-collection and/or self-carriage by the customer the date of issue of the confirmation, the signature of the customer or a person authorised by him to carry out the acceptance.
(3)	If we do not have a valid VAT identification number or if we do not receive the confirmation of arrival within three months of successful delivery, we are entitled to subsequently charge the sales tax at the applicable sales tax rate or to correct the invoice accordingly.

Section 16 –LIMITATION PERIOD
	All claims of the purchaser - for whatever legal reasons - shall become statute-barred after 12 months. This shall not apply to claims for damages due to injury to life, body or health and not to such claims for damages which are based on a grossly negligent breach of duty. The statutory limitation regulations for claims under the Product Liability Act and in the case of a delivery recourse according to sec. 445a, b BGB shall also remain unaffected.

Section 17 – OTHER
(1)	The place of performance and jurisdiction for both parties is the registered office of our company, Hungen, whereby we reserve the right to bring an action also at the general place of jurisdiction of the customer.
(2)	The law of the Federal Republic of Germany applies exclusively; the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.

Section 18 – SAFEGUARDING CLAUSE
(1)	Should individual clauses of these terms and conditions of sale be or become invalid, this shall not affect the validity of the remaining terms and conditions. The parties shall replace the invalid provision by a valid provision which comes closest to the economic content of the invalid provision. The same shall apply in the event of an unintentional loophole in the regulations.

Issue 07/2020
Download	Terms and conditions of sale [PDF 0,45 MB]