Sales and Delivery Terms of Schlaadt GFH mbH
As of: March 07, 2006

1. Validity

The following General Terms and Conditions apply to all – including future – offers, contracts, deliveries, and other services, unless they are modified or excluded with the express consent of the Seller. The Buyer’s General Terms and Conditions shall not become binding even if the Seller does not expressly object to them again.

2. Offer and Conclusion, Delivery Item

Offers are always subject to change; contract conclusions only become binding through written confirmation by the Seller.
To the extent that sales employees or commercial agents or travelers make verbal side agreements or give assurances that go beyond the written purchase contract, they are only authorized to do so by the Seller if the latter has authorized them in writing to the Buyer or subsequently confirms (approves) the agreements or assurances in writing.
The average reject samples, which we submit to the Buyer for inspection and written approval, are decisive for the quality and execution of our goods. The Buyer bears sole responsibility for the correct design of our goods and their suitability.
Special properties such as oil-resistant, flame-retardant, antistatic, colored, must be additionally requested in the order documents.

3. Dimensions, Weights, Properties, and Goods

The performances are stated as they can be expected based on experience in proper operation. Deviations in dimensions are permissible within the framework of DIN 7168 rough. Furthermore, we point out that weights can have a tolerance of ± 10%. Regarding all other technical properties, we refer to DIN 55471.

4. Tools (Molds)

The tools (molds) specially manufactured for the Buyer, by us or on our behalf, remain the property of the Seller until full payment by the Buyer.
The Seller is obligated to store and maintain the molds for the Buyer. The storage obligation expires if no further order is placed within 2 years after the last delivery.
If the Buyer’s demand exceeds the capacity or total output of the tool, it is necessary to create a new tool or to repair damage caused by wear. The resulting costs are borne by the Buyer.
If costs for the production of molds were partially borne by the Seller, a claim for return only exists after reimbursement of the proportionate mold costs paid by the Seller.

5. Cooperation Obligations of the Buyer

If reinforcement parts, e.g., parts to be foamed or injected, are supplied by the Buyer, the Buyer is obligated to deliver them free to the Seller’s plant with a surcharge of 5% for possible rejects, and in a timely manner, in perfect condition, and in such quantities that uninterrupted processing is possible. Otherwise, the Buyer is obligated to compensate for the additional costs incurred due to their fault. In such cases, the Seller reserves the right to interrupt production and resume it at a later time.

6. Third-Party Property Rights

If the Seller has to deliver items according to drawings, models, or samples provided by the Buyer, the Buyer guarantees that the manufacture and delivery of the items do not infringe third-party property rights.

If a third party nevertheless asserts protection or compensation rights for such items, the Buyer shall indemnify the Seller against all third-party claims for damages, including foreign and own legal prosecution costs. The Seller is obligated to immediately inform the Buyer of the assertion of third-party property rights. After hearing the Buyer, the Seller is entitled to suspend the production of items for which third parties assert property rights until legal clarification. In this case, the Buyer has to reimburse the costs incurred up to that point.

7. Prices and Payments

The prices are understood to be free loaded wagon or ship departure station, for truck shipment ex delivery plant, unless otherwise agreed, and plus value-added tax at the respective statutory rate.

Invoices are to be paid immediately upon receipt of the goods without deduction.

Payment terms and discounts require special written agreement. Any granted rebates and discounts are forfeited in case of payment default (§ 284 BGB); this also applies to partial payment default.

In case of late payment by the buyer, the seller is entitled to charge interest of 5% above the current base rate of the European Central Bank as default damages. However, proof of higher or lower default damages remains open.

Payment regulation by check or bill of exchange is made for payment purposes and requires the seller’s consent; discount and bill charges are borne by the buyer.

Unless otherwise agreed, payment for tools (molds) is made in cash without deduction; 50% of the price upon order, the remainder after receipt and acceptance of the sample parts by the buyer.

The seller charges the prices and fees agreed upon at the conclusion of the contract, which are based on the cost factors valid at that time. Should one of the factors – raw materials, wages, energy, freight, exchange rates, taxes, levies, and customs duties – change by more than 10% in the period between the conclusion of the contract and the individual call-offs, the parties must renegotiate the price.
If no agreement is reached, both parties are free to terminate the contract with immediate effect.

The seller’s field representatives are not authorized to collect payments.

8. Delivery Conditions, Delay, Impossibility of Delivery

If no delivery period is agreed upon, the seller has the right to demand acceptance of the goods 3 months after the date of order confirmation – even without threat of rejection. If the buyer does not comply with this deadline, the seller is entitled to withdraw from the contract or claim damages.

The expiration of certain delivery periods and dates does not exempt the buyer, who wants to withdraw from the contract or claim damages for non-performance, from granting a reasonable grace period for performance and declaring that he will refuse the performance after the expiry of the period.

Partial deliveries are permitted.

The delivery period shall be extended appropriately – even during a delay – in the event of force majeure and all unforeseen obstacles occurring after the conclusion of the contract for which the seller is not responsible, insofar as such obstacles demonstrably have a significant influence on the delivery of the sold item. This also applies if these circumstances occur at the seller’s suppliers and their sub-suppliers.
The seller shall inform the buyer of the beginning and end of such obstacles as soon as possible. The buyer may demand that the seller declare whether they will withdraw or deliver within a reasonable period. If the seller does not respond immediately, the buyer may withdraw. Delivery periods are extended by the period in which the buyer is in default with their contractual obligations – within an ongoing business relationship also from other contracts.
The seller is not responsible for delay and non-delivery (impossibility) as long as they, their vicarious agents, and upstream suppliers are not at fault. Otherwise, they are liable according to statutory provisions. If they have to pay damages, the buyer’s claim for damages – if the contract is related to a commercial activity of the buyer – is limited to the foreseeable damage at the time of the conclusion of the contract, but at most 10% of the value of that part of the total delivery which cannot be used in time or as contractually agreed due to the delay or non-delivery. This limitation does not apply insofar as the seller is mandatorily liable in cases of intent or gross negligence.
The seller is in no case responsible for delayed or omitted (impossible) deliveries caused by the fault of their upstream supplier.
The buyer’s right to withdraw after the fruitless expiry of a reasonable grace period set for the seller remains unaffected.

Due to production specifics, the seller reserves the right to deliver 10% more or less.

9. Shipping and Transfer of Risk

Unless otherwise agreed, the choice of shipping route and means is left to the seller. The goods are insured at the request and expense of the buyer.
If shipment is delayed at the request or due to the fault of the buyer, the goods are stored at the expense and risk of the buyer. In this case, notification of readiness for dispatch is equivalent to dispatch.
Otherwise, the risk passes to the buyer upon handover of the goods to a forwarding agent or carrier, but at the latest when the goods leave the seller’s factory or warehouse. This also applies if the goods are delivered freight paid by us. In the event of damage, the seller is obliged to assign their claims against the forwarding agent or carrier to the buyer.

If delivery free to destination station is agreed, delivery takes place from the loading station with the buyer assuming freight costs. The buyer must pay and advance freight and other transport costs, duties, and insurance charges on the goods without deduction of discount, if the seller deems it necessary and requests it at his discretion (§ 315 BGB).

Delivery free to warehouse means delivery without unloading, provided there is a driveway accessible by heavy truck. The buyer must unload immediately and properly. Waiting times of more than one hour will be charged to the buyer.
If no person ready to accept delivery can be found at the destination during local business hours, any resulting risks and additional costs shall be borne by the buyer.

Returnable pallets, wire mesh boxes, and tarpaulins are to be returned to us free of charge or, if possible, taken back by our vehicles.

10. Distribution

The buyer may only distribute and resell the delivered goods in the customary manner of trade.

11. Retention of Title and Current Account Reservation, Advance Assignment and Balance Clause as well as Extended Retention of Title

The goods remain the property of the seller until full payment of all claims including ancillary claims, claims for damages, and credit of checks and bills of exchange.

The retention of title remains in effect even if individual claims of the seller are included in a current account and the balance is drawn and acknowledged.

The buyer is entitled to resell the goods subject to retention of title only in consideration of the following provisions and only with the proviso that the claims according to paragraph 5 are actually transferred to the seller.

The buyer’s authority to sell goods subject to retention of title in the ordinary course of business ends with the revocation by the seller due to a sustained deterioration of the buyer’s financial situation, but at the latest with the buyer’s suspension of payments or with the application for or opening of insolvency proceedings over the buyer’s assets.

The buyer hereby assigns the claim with all ancillary rights from the resale of the goods subject to retention of title to the seller.
If the buyer has sold the claim within the scope of genuine factoring, he assigns the claim taking its place against the factor to the seller. The seller accepts this assignment.

If goods subject to retention of title are installed as an essential component in a device or property of a third party, the buyer hereby assigns the claims for remuneration arising against the third party or whomever it may concern in the amount of the value of the goods subject to retention of title with all ancillary rights, including such for granting a security mortgage, with priority over the rest; the seller accepts the assignment.

If goods subject to retention of title are installed as an essential component in a device or property of the buyer, the buyer hereby assigns the claims arising from the sale of the device or property or from property rights in the amount of the value of the goods subject to retention of title with all ancillary rights and with priority over the rest; the seller accepts the assignment.

The buyer is authorized to collect the assigned claims as long as he meets his payment obligations. The collection authorization expires upon revocation, but at the latest in case of default of payment by the buyer or in case of significant deterioration of the buyer’s financial circumstances. In this case, the seller is authorized by the buyer to inform the customers of the assignment and to collect the claims himself. The buyer is obliged to provide the seller, upon request, with an exact list of the claims due to the seller with names and addresses of the customers, amount of the individual claims, invoice dates, etc., and to give the seller all information necessary for asserting the assigned claims and to permit the verification of this information.

If the value of the existing security for the seller exceeds his claims by more than 20% in total, the seller is obliged to release securities of his choice at the request of the buyer or a third party impaired by the seller’s over-collateralization.

Pledging or transfer of ownership by way of security of the goods subject to retention of title or the assigned claims is not permitted. The seller must be notified immediately of any seizures, stating the name of the pledgee.

If the seller takes back the delivery item based on the retention of title, this only constitutes a withdrawal from the contract if the seller expressly declares this. The seller can satisfy himself from the returned goods subject to retention of title by private sale.

The buyer stores the reserved goods for the seller free of charge. He must insure them against the usual risks, such as fire, theft, and water, to the customary extent. The buyer hereby assigns his compensation claims against insurance companies or other liable parties for damages of the aforementioned type to the seller in the amount of the invoice value of the goods; the seller accepts the assignment.

All claims as well as the rights arising from the retention of title in all special forms specified in these conditions shall remain in force until complete release from contingent liabilities that the seller has entered into in the interest of the buyer.

12. Intellectual Property and Know-How

All documentation, illustrations, drawings, models, forms, etc., which are made available to the buyer by the seller or which are used for the buyer, remain the property of the seller.

The buyer is not entitled to use these for purposes other than for the use of the item to which they relate.

The buyer is not entitled to disclose the documents mentioned in paragraph 1 or the data contained therein or otherwise made available to him to third parties, unless the seller grants written permission to do so.

The buyer shall indemnify the seller against all third-party claims arising from intellectual property rights in the event that the seller manufactures products based on drawings, models, or samples of the buyer.

13. Notice of Defects

The buyer is obliged to inspect each incoming delivery immediately for its proper content. The seller (not the representative) must be notified of any deviation from the content specified in the bill of lading or delivery note or of any other missing or incorrect deliveries.
The latter must be done within 3 days, insofar as a merchant is supplied for his commercial operation.
The obligation to give notice of defects for merchants and non-merchants also refers to recognizable defects of the goods themselves or the packaging.

14. Liability

In the case of justified complaints, the seller shall, at its discretion, remedy defective goods or provide a replacement delivery. For the rectification of defects, the buyer must grant the seller the time and opportunity required at reasonable discretion; in particular, he must make the complained goods available; otherwise, the warranty lapses.

If the seller allows a reasonable grace period set by the buyer to elapse without remedying the defect or providing a replacement, or if subsequent performance or replacement delivery is impossible or refused by the seller, the buyer has the right, at his discretion, to demand cancellation of the contract (rescission) or reduction of the purchase price (price reduction).

If the buyer demands compensation for damages, this is limited in principle to the foreseeable, typically occurring damage and in amount to the compensation provided by an appropriate business liability insurance, unless the seller or his vicarious agents are charged with intent or it concerns personal injury or damage to health.

If the seller has assumed a guarantee for the goods, the buyer is only entitled to the statutory rights insofar as the guarantee pursued the purpose of protecting him against corresponding damage. The latter also applies if the buyer is not a merchant who is supplied for his commercial operation.

Any improper changes and repair work carried out by the buyer or third parties will void the liability for the resulting consequences.

15. Suspension of Payment

If the seller becomes aware that changes occur in the person of the buyer or in the legal form of his company, whereby his creditworthiness is affected, or if the buyer suspends his payments or if bankruptcy or composition proceedings are opened against his assets or the assets of his company, then all existing claims of the seller become immediately due without further notice.
In the event of suspension of payments or the opening of insolvency proceedings, the buyer is obligated to immediately separate and mark the goods still in his possession for the seller. The seller must be informed of this without delay.

16. Place of Performance and Jurisdiction

The place of performance and exclusive jurisdiction for deliveries and payments (including check and bill actions) as well as all disputes arising between the parties is, insofar as the buyer is a full merchant, a legal entity under public law or a special fund under public law, the main office of the seller, namely St. Goarshausen.
Regardless of the amount in dispute, the Regional Court of Koblenz shall have exclusive jurisdiction for any legal dispute.

17. Prohibition of Set-off and Assignment, and Right of Retention

The buyer is not entitled to offset counterclaims against the seller’s claims, unless these are legally established or undisputed or acknowledged by the seller.
The assignment of payment claims, including damage claims, by the buyer against the seller is only effective with the prior consent of the seller. If the seller has no legitimate interest worthy of protection in prohibiting the assignment, they are obliged to declare their consent to the assignment.
The buyer may only assert a right of retention against the seller’s claims for their own counterclaims if this claim arises from the same contractual relationship.

18. Final Provisions

Should individual provisions of the above conditions be invalid or inapplicable for any other reason, the remaining provisions shall remain valid.