Status: 01.01.2015

§1 Scope of Application
(1) Our Terms and Conditions of Purchase and Sale apply exclusively; we do not recognize any conflicting or deviating conditions of our suppliers or customers unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Purchase and Sale shall also apply if we accept a delivery or provide a service without reservation despite being aware of conflicting or deviating conditions of the supplier or customer. (2) All agreements made between us and the supplier or customer for the purpose of executing this contract must be set out in writing in this contract. (3) Our Terms and Conditions of Purchase and Sale apply only to entrepreneurs (legal entities) within the meaning of Section 310 (1) BGB (German Civil Code).

§2 Place of Jurisdiction – Place of Performance – Choice of Law
(1) Insofar as the supplier or customer is a merchant (Kaufmann), our registered office shall be the place of jurisdiction; however, we are also entitled to sue the supplier or customer at their local court. (2) Unless otherwise stated in an order placed with us, our registered office shall be the place of performance. (3) The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

§1 Offers – Offer Documents
(1) The supplier may accept our order within a period of no more than 2 weeks. (2) We reserve the rights of ownership and copyright to illustrations, drawings, calculations, and other documents provided for the purpose of preparing the offer or executing the order; they may not be made accessible to third parties without express written consent and are to be used exclusively for production based on the order; after their processing, there is an obligation to return them without request. Strict confidentiality must be maintained towards third parties.

§2 Prices – Terms of Payment
(1) The price shown in the order towards us is binding. In the absence of a deviating written agreement, the price includes delivery “carriage paid” (DDP/free house), including packaging. The return of packaging requires a special agreement. (2) Statutory value-added tax (VAT) is included in the price – unless otherwise expressly determined. This also applies in particular to information provided by telephone. (3) We can only process invoices if they specify a purchase order number shown therein – in accordance with the specifications in our order – and otherwise comply with all statutory, in particular tax-law, requirements. (4) Unless otherwise agreed in writing, we shall pay the purchase price within 14 days, calculated from delivery and receipt of invoice, with a 2% cash discount, or within 30 days of receipt of invoice net. (5) We are entitled to rights of set-off and retention to the statutory extent.

§3 Delivery Time
(1) The delivery time specified in the order is binding. (2) The supplier is obliged to notify us immediately in writing if circumstances occur or become apparent to them from which it follows that the stipulated delivery time cannot be met. (3) In the event of default in delivery, we shall be entitled to the statutory claims. In particular, we are entitled to demand damages instead of performance and withdrawal after the fruitless expiry of a reasonable period. If we demand damages, the supplier has the right to prove to us that they are not responsible for the breach of duty.

§4 Transfer of Risk – Documents
(1) Unless otherwise agreed in writing, delivery shall be made “carriage paid” (free house). (2) The supplier is obliged to state our exact purchase order number on all shipping documents and delivery notes; if they fail to do so, we shall not be responsible for delays in processing.

§5 Inspection for Defects – Liability for Defects
(1) We are obliged to inspect the goods for any quality and quantity deviations within a reasonable period; the notice of defect is timely if it is received by the supplier within a period of 5 working days, calculated from receipt of the goods or, in the case of hidden defects, from discovery. (2) We are entitled to the statutory claims for defects in full; in any case, we are entitled to demand from the supplier, at our option, remedy of defects or delivery of a new item. The right to damages, in particular to damages instead of performance, remains expressly reserved. (3) We are entitled to carry out the remedy of defects ourselves at the supplier’s expense if there is imminent danger or special urgency. (4) The limitation period is 36 months, calculated from the transfer of risk.

§6 Product Liability – Indemnification
(1) Insofar as the supplier is responsible for product damage, they are obliged to indemnify us against claims for damages by third parties upon first request, insofar as the cause is set within their sphere of control and organization and they themselves are liable in the external relationship. (2) Within the scope of their liability for damage cases within the meaning of paragraph (1), the supplier is also obliged to reimburse any expenses pursuant to Sections 683, 670 BGB or pursuant to Sections 830, 840, 426 BGB arising from or in connection with a recall campaign carried out by us. We shall inform the supplier – as far as possible and reasonable – about the content and scope of the recall measures to be carried out and give them the opportunity to comment. Other statutory claims remain unaffected.

§7 Intellectual Property Rights
(1) The supplier warrants that no third-party rights within the Federal Republic of Germany are violated in connection with their delivery. (2) If a claim is made against us by a third party for this reason, the supplier is obliged to indemnify us against these claims upon first written request; we are not entitled to make any agreements with the third party – without the consent of the supplier – in particular to conclude a settlement. (3) The supplier’s obligation to indemnify refers to all expenses necessarily incurred by us from or in connection with the claim by a third party. (4) The limitation period is ten years, calculated from the conclusion of the contract.

§1 Offers – Orders – Offer Documents
(1) If an order placed with us is to be qualified as an offer pursuant to Section 145 of the German Civil Code (BGB), we may accept it within 2 weeks. (2) We reserve the rights of ownership and copyright to illustrations, drawings, calculations, and other documents provided by us for the preparation of the offer. This also applies to such written documents designated as “confidential.” Before passing them on to third parties, the customer requires our express written consent.

§2 Prices – Terms of Payment
(1) Unless otherwise stated in the order confirmation, our prices apply “ex works” (EXW), excluding packaging. (2) Statutory value-added tax (VAT) is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing. (3) For payments made within 14 days of the invoice date and an invoice value of more than EUR 50.00 (net), a cash discount of 2% is granted. (4) Otherwise, the purchase price shall be paid without deduction within 30 days of the due date and receipt of an invoice or equivalent payment schedule – after which default occurs automatically. (5) The customer shall only be entitled to rights of set-off if their counterclaims have been legally established, are undisputed, or have been recognized by us. Furthermore, they are authorized to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.

§3 Delivery Time
(1) The commencement of the delivery time specified by us presupposes the clarification of all technical questions. (2) Compliance with our delivery obligation further presupposes the timely and proper fulfillment of the customer’s obligations – the plea of non-performance of the contract remains reserved. (3) If the customer is in default of acceptance or culpably breaches other duties of cooperation, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims remain reserved. (4) Insofar as the requirements of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the delivery item shall pass to the customer at the point in time at which the customer has fallen into default of acceptance or debtor’s delay. (5) We shall be liable in accordance with the statutory provisions insofar as the underlying contract is a fixed-date transaction within the meaning of Section 286 (2) No. 4 BGB or Section 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that their interest in further performance of the contract has ceased to exist. (6) We shall furthermore be liable in accordance with the statutory provisions if the delay in delivery is based on an intentional or grossly negligent breach of contract for which we are responsible; any fault on the part of our representatives or vicarious agents is attributable to us. Unless the delay in delivery is based on an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage. (7) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage. (8) Furthermore, in the event of a delay in delivery, we shall be liable for each completed week of delay within the scope of a liquidated damages for delay amounting to 3% of the delivery value, but not more than a maximum of 15% of the delivery value. (9) Further statutory claims and rights of the customer remain reserved.

§4 Transfer of Risk – Packaging Costs
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed. (2) Separate agreements apply to the return of packaging. (3) If the customer so desires, we shall cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.

§5 Liability for defects
(1) Claims for defects on the part of the customer presuppose that the customer has properly fulfilled their obligations to inspect and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB). (2) Insofar as a defect in the purchased item exists, the customer is entitled, at their option, to supplementary performance in the form of a remedy of the defect or the delivery of a new, defect-free item. In the case of remedy of defects, we are obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor, and material costs, provided that these are not increased by the fact that the purchased item was taken to a place other than the place of performance. (3) If the supplementary performance fails, the customer is entitled, at their option, to demand withdrawal (rescission) or a reduction in the purchase price. (4) 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 representatives or vicarious agents. Unless we are accused of intentional breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage. (5) We shall be liable according to the statutory provisions if we culpably breach a material contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage. (6) Liability for culpable injury to life, body, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act. (7) Unless otherwise regulated above, liability is excluded. (8) The limitation period for claims for defects is 12 months, calculated from the transfer of risk. (9) The limitation period in the case of a delivery recourse according to Sections 478, 479 of the German Civil Code (BGB) remains unaffected; it is five years, calculated from delivery of the defective item.

§6 Total Liability
(1) Any further liability for damages other than that provided for in Section 5 is excluded – regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo (fault upon conclusion of a contract), other breaches of duty, or tortious claims for compensation for property damage pursuant to Section 823 BGB. (2) The limitation according to paragraph (1) also applies insofar as the customer demands compensation for useless expenditures instead of a claim for compensation for damages in lieu of performance. (3) Insofar as the liability for damages against us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, workers, staff, representatives, and vicarious agents.

§7 Retention of Title
(1) We reserve title to the purchased item until all payments resulting from the delivery contract have been received. In the event of a breach of contract by the customer, in particular in the case of default of payment, we are entitled to take back the purchased item. The taking back of the purchased item by us constitutes a withdrawal from the contract. After taking back the purchased item, we are authorized to utilize it; the proceeds from the utilization shall be offset against the customer’s liabilities – less reasonable utilization costs. (2) The customer is obliged to treat the purchased item with care; in particular, they are obliged to insure it sufficiently at their own expense against fire, water, and theft damage at replacement value. Insofar as maintenance and inspection work is required, the customer must carry this out in good time at their own expense. (3) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file a lawsuit pursuant to Section 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of a lawsuit pursuant to Section 771 ZPO, the customer shall be liable for the loss incurred by us. (4) The customer is entitled to resell the purchased item in the ordinary course of business; however, they hereby assign to us all claims in the amount of the final invoice amount (including VAT) of our claim accruing to them from the resale against their customers or third parties, regardless of whether the purchased item has been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets their payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have been suspended. If this is the case, however, we may demand that the customer discloses the assigned claims and their debtors, provides all information required for collection, hands over the associated documents, and notifies the debtors (third parties) of the assignment. (5) The processing or transformation of the purchased item by the customer is always carried out for us. If the purchased item is processed with other objects not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed objects at the time of processing. For the item created by processing, the same applies as for the purchased item delivered under reservation. (6) If the purchased item is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer shall transfer proportionate co-ownership to us. The customer shall keep the resulting sole ownership or co-ownership for us. (7) The customer also assigns to us the claims for securing our claims against them which accrue against a third party through the connection of the purchased item with a property. (8) We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be at our discretion.

Schnake-Hydraulik Bremen GmbH | Status: 01.01.2015