The following General Terms and Conditions (version dated 09/2017) of the company Schmidbauer GmbH Transformatoren und Gerätebau GmbH, Spanberg 16, 84332 Hebertsfelden, Germany, shall apply exclusively to the entire business relationship, in particular to all contractual relationships. The terms and conditions of any kind of our business partners shall not form part of the contract, unless this is agreed separately. Our terms and conditions also apply to all future business relations, even if they are not expressly agreed again. Subsidiary agreements or deviating agreements must be made in writing.
The provisions marked with ‘N’ shall only apply to business relationships with merchants and only insofar as the contract forms part of the merchant’s business operations.
- 1 Prohibition of offsetting
A set-off is only permissible in the event of undisputed or legally established claims.
- 2 Right of Retention
2.1. The assertion of a right of retention, which is based upon the same legal relationship within the meaning of Section 273 BGB [German Civil Code] but not, however, on the same contractual relationship (Section 309 (2) (b) BGB), is only permissible if the claim upon which the right of retention is based is undisputed or has been legally established. Notwithstanding Section 274 II 2 BGB and Section 369 IV 2 HGB [German Commercial Code], security may also be provided by a directly enforceable guarantee from a major German bank.
2.2. N The assertion of a right of retention is only permissible if the claim upon which the right of retention is based is undisputed or has been legally established. The commercial right of retention is subject exclusively to the following clause.
2.3. N The assertion of a commercial right of retention is only permissible if the claim upon which the right of retention is based is undisputed or has been legally established.
- 3 Plea of non-performance of contract
3.1. Should the delivery obligations of Schmidbauer GmbH consist of generic obligations, the plea of non-performance of the contract is excluded with regard to those items already delivered insofar as the reason provided is that a proportion of the ordered quantity has not yet been delivered.
3.2. This applies unless the partial performance is of no interest to the creditor as a result of the absence of the remaining quantity (cf. sections 281 I, 323 V BGB)
- 4 Quality of goods or services/reservation of self-supply
4.1 Our goods are exclusively intended for use by business operators. Should the Customer intend to deliver the goods purchased from us to a consumer or a business operator who in turn supplies consumers with such goods, the Customer must inform us accordingly.
4.2 The information on features and properties contained in our public statements, such as catalogues, brochures, circulars, advertisements, illustrations, advertising and price lists, are only deemed to form part of the agreed quality if they have become part of the contract. Public statements made by a third-party manufacturer or his assistant are only part of the agreed quality of the goods if they are agreed in the contract, or if we have expressly adopted them in writing in public statements.
4.3 Until delivery, we reserve the right to effect standard technical modifications, in particular improvements, if only minor changes in quality occur and the Customer is not unreasonably affected.
4.4 Information on the quality or durability of a good or service does not contain a guarantee (representation) within the meaning of § 276 I BGB, nor a quality or durability guarantee within the meaning of § 443 BGB, if we have not expressly assumed such a guarantee in writing.
4.5 If goods are created and modified on the basis of specifications provided by the Customer, we are not obliged to check these specifications without the drawing up of a special agreement. The Customer shall not be entitled to any claims for defects that are attributable to these specifications or to preliminary products used by the Customer and supplied by third parties.
4.6 Since we purchase parts of the components from sub-suppliers, our obligation to deliver is subject to the timely and correct supply of such parts to ourselves. Should this case arise, we undertake to immediately inform our Customers about the unavailability and to reimburse any payments already made without delay.
4.7 Impediments to performance for which we are not responsible shall therefore lead to a corresponding extension of the performance period. This applies in particular to lacking or missing self-supply (see clause 4.6), traffic or operational disruptions, hindered imports, shortage of energy and raw materials, as well as official measures and industrial disputes. We are entitled to withdraw from the contract should the impediment to performance continue for an unknown period of time and the purpose of the contract is endangered. Should this case arise, we undertake to immediately inform our Customers about the unavailability and to reimburse any payments already made without delay.
- 5 Retention of title
5.1. The goods remain the property of the Seller until full payment of the purchase price is received. Should the Customer be in default of payment of the purchase price in whole or in part, in addition to Section 5.1, the title shall not pass to the Customer until a due claim for reimbursement of the damage caused by default (§§286, 280 BGB) has also been fulfilled.
5.2. N If the contractual partner is a merchant and the contract forms part of his commercial business, the goods shall remain the property of the Seller until all due claims from the business relationship have been paid in full.
5.3. N The contractual partner is entitled to sell goods subject to retention of title within the scope of regular business transactions, provided that he is not in default of payment to us.
5.4. N Upon conclusion of the purchase contract between the Customer and us, the Customer assigns to us in full the claims against his customers to which he is entitled due to the sale of the object of purchase, or on other legal grounds, including all ancillary rights.
5.5. N The Customer remains entitled to collect the claim as long as he is not in default of payment to us.
- 5.6. N The handling and processing of goods delivered by us is always carried out on our behalf, without this resulting in liabilities for us.
5.7. N If the value of the securities, in particular the goods delivered under reservation of title, the claims assigned by way of security, as well as the ownership by way of security that we have obtained on the basis of a processing clause, exceeds the value of the claims of Schmidbauer GmbH against the contractual partner by more than 20%, we are obliged to release securities at the request of the contractual partner (e.g. transfer of ownership of goods: assignment of receivables). Value within the meaning of the preceding paragraph is the real value, not the nominal value. The contractual partner is, of course, also entitled to this claim if he is in default of payment.
5.8. The Customer is obliged to protect our property from any impairment by third parties — insofar as this does not occur in the normal course of business — and to notify us; this applies in particular to seizures by third parties.
- 6 Liability
The user is only liable for damages in cases of intent and gross negligence. This shall also apply if the action of a vicarious agent or assistant is attributed to us as. This also applies to legal claims, such as tortious claims or claims arising from contractual negotiations, but not to damages resulting from injury to life, body or health.
- 7 Warranty/Subsequent performance for services of Schmidbauer GmbH
7.1. If the delivered item is defective (Section 434 BGB), we have the option of subsequent performance or replacement delivery at our discretion. If subsequent performance or replacement delivery fails, the contractual partner shall be entitled to the statutory warranty claims, thus in particular reduction or withdrawal.
7.2. If the contractual partner is a consumer, the limitation period for used goods is 1 year from the statutory start of the limitation period.
7.3. If the contractual partner is not a consumer, the warranty period for defects in newly manufactured goods and work services is one year from the statutory start of the limitation period, unless the defects relate to claims under §438 I No. 2 BGB or §634 a I No. 2 BGB. If the delivered item is a used item, there is no warranty.
7.4. N If the contractual partner is a merchant, the warranty period for defects in newly manufactured goods and work services is 1 year from the statutory start of the limitation period, unless the defects relate to claims under §438 I No. 2 BGB or §634 a I No. 2 BGB. If the delivered item is a used item, there is no warranty.
7.5. The rights of the contractual partner in accordance with Sections 478, 479 BGB are not affected by the provisions of paragraphs 7.3 and 7.4.
7.6 Insofar as statutory warranty periods are reduced in the above clauses 7.2 to 7.4, this shall not apply to claims for damages due to injury to life, body and health. Any reduction shall also not apply to other claims for damages if the liability is based on a grossly negligent breach of duty on our part, or a grossly negligent or intentional breach of duty by our legal representatives or our vicarious agents.
- 8 Acceptance
8.1. If the buyer does not accept the goods, or does not accept them in time or in full, we are entitled to dispatch the goods or to store them at the buyer’s expense and risk. Upon dispatch or storage, the goods shall be deemed to have been delivered in accordance with the contract in every respect.
8.2. Excess deliveries or undershipments of 5% shall be deemed to be approved. Should this be the case, the value will be balanced within the scope of invoicing.
- 9 N Notification of defects
If the contractual partner is a merchant and the concluded contract forms part of the trader’s commercial enterprise, §377 HGB applies to deliveries to Schmidbauer GmbH as follows: An immediate inspection and notification of a defect shall in any case still be deemed to have taken place if the object of purchase is inspected within two weeks of delivery and the notification of defect is sent within this period. This shall apply accordingly if a defect becomes apparent later.
- 10 N Obligations to investigate and report
We strive to only deliver the highest quality, but unfortunately, issues can never be completely ruled out. Within the scope of product monitoring, each contractual partner is therefore obliged to immediately report in writing any defects discovered, in particular defects that indicate design faults, manufacturing faults or instruction errors. The purpose of this notification is both to avoid product liability claims by the contractual partner and third parties, and to ensure that we do not send defective goods to our Customer or other third parties within the meaning of Sections 434 et seq. BGB.
- 11 Place of jurisdiction
11.1. If the contractual partner is a merchant, or a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for disputes that by their nature fall under the competence of the local court is Eggenfelden; for disputes that by their nature fall under the competence of the regional court, the place of jurisdiction is Landshut.
11.2. If the contractual partner does not have a general place of jurisdiction in Germany or if the party to be claimed against moves its domicile or usual area of residence outside the scope of the ZPO [Code of Civil Procedure] after concluding the contract, the general place of jurisdiction for disputes that by their nature fall under the competence of the local court is Eggenfelden; for disputes that by their nature fall under the competence of the regional court, the place of jurisdiction is Landshut.
11.3. The above two paragraphs shall not apply if the legal dispute concerns non-pecuniary claims that are subject to the competence of the local courts irrespective of the value of the subject matter of the litigation or if an exclusive place of jurisdiction is established.
11.4. If the business partner is domiciled or has its registered office in a contracting State to the EuGVÜ [Convention on jurisdiction and the enforcement of judgments in civil and commercial matters], the exclusive place of jurisdiction for disputes falling by their nature under the competence of the local court is Eggenfelden; for disputes that by their nature fall under the competence of the regional court, the place of jurisdiction is Landshut. The preceding paragraph shall not apply if it is contrary to the provisions of Art. 12 or 15 of the EuGVÜ or if an exclusive jurisdiction pursuant to Article 16 of the EuGVÜ is established.
- 12 Applicable Law
German law shall apply to the business relationship, in particular to any contract, and to the exclusion of international agreements (e.g. United Nations Convention on Contracts for the International Sale of Goods, etc.).
- 13 – Severability
Should individual provisions of a contract between us and our business partner be or become invalid, or should a gap in the contract become apparent, the validity of the remaining provisions of the contract shall remain unaffected. In place of the ineffective provisions or to fill the gap, a legally permissible provision should be inserted that is equal to the provision that the parties would have made if they had considered the ineffectiveness or the gap when concluding the contract.