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General Terms and Conditions of Schiller Apparatebau GmbH
- Scope and Conclusion of Contracts
1.1 The following General Terms and Conditions shall be applicable for all deliveries and sales of
Schiller Apparatebau GmbH (“Supplier”) as well as for every other performance by Supplier, so far
as these have not been made expressly subject to other general terms and conditions of the
Supplier to customers who are entrepreneurs in the meaning of Section 14 of the German Civil
Code (BGB) or which are legal entities under public law and public law special funds. These
General Terms and Conditions apply to all future sales and services of Supplier to the Customer.
1.2 Except when expressly agreed otherwise, the following General Terms and Conditions apply.
Deviating agreements – before or at the conclusion of the contract – need to be in writing to be
deem valid. Unless agreed to in writing by Supplier, Customer’s conflicting conditions, if any, are
not accepted and are hereby rejected.
1.3 Conclusion of the contract requires – unless agreed otherwise – the written order confirmation by
Supplier. - Offer
2.1 Offers by Supplier are non-binding. Orders and confirmations are only binding for Supplier, if they
are confirmed in writing.
2.2 Documents pertaining to the offer such as illustrations and drawings and specifications with regard
to weight, performance and measures rank only as approximations unless they are expressly
specified to be binding. In particular, they do not contain any warranted qualities. Warranties or
guaranties have to be made in writing and are expressly denoted as such. Unless limits for
permissible deviations are expressly stipulated in the confirmation of order and de- noted as such,
customary deviations (fabrication tolerances) are permissible.
2.3 Supplier retains title and copyrights to models, estimates, drawings and other information in
tangible or intangible form – also in electronic form; they may not be made accessible to third
parties without the express permission of the supplier.
2.4 Supplier is obligated not to make accessible to third parties without Customer’s consent those
plans Customer has designated to be confidential. - Scope of Delivery
3.1 The scope of delivery is determined by Supplier’s written confirmation of order. - Prices and Payment
4.1 In the absence of a special agreement, the prices shall be ex works including loading but excluding
packaging, insurance and freight. Value-added tax in the respective statutory amounts shall be
charged additionally.
4.2 In the absence of a special agreement, payment is to be made in cash without any discount free
Supplier’s paying office, namely:
(a) 1/3 down-payment upon sending of the confirmation of the order,
(b) 1/3 at half time of the offered delivery time,
(c) 1/3 immediately upon notification of readiness for shipping.
4.3 Customer shall have no right of set-off or retention, except to the extent that the counterclaim has
not been disputed by Supplier or been determined by a final and binding decision.
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4.4 All invoices are payable in Euros.
4.5 In the case of deliveries within the area of the European Community, Customer must inform
Supplier of its value add- ed tax identification number and must submit to Supplier all necessary
documentation (vouchers, acknowledgements of receipt etc.) by way of proof of any applicable
tax-exempt intra -Community delivery.
4.6 If Supplier is charged with a back payment of turnover tax on account of incorrect or incomplete
information by Cus- tomer, Supplier is entitled to debit Customer with that sum. If the incorrect or
incomplete information is the fault of Customer, it is obliged to pay Supplier damages.
4.7 The acceptance of drafts and cheques requires the prior express consent of Supplier and will only
be accepted on account of performance. Regarding such means of payment the date of payment
is deemed to be the day on which Supplier can dispose of the equivalent sum. Any discounts,
charges or fees are to be borne by Customer. - Terms of Delivery, Delivery delay
5.1 The terms of delivery shall begin with the posting of the confirmation of the order but not before all
commercial and technical questions have been resolved between the parties and Customer has
fully fulfilled its obligations, e. g. sub- mitted the documents, approvals and releases to be
supplied, nor prior to the receipt of the agreed down-payment. In the event that Customer fails to
fulfil any of its aforementioned obligations, the terms of delivery shall be reasonably extended.
However, this shall not apply should Supplier be responsible for the delay.
5.2 Adherence to the terms of delivery is subject to the correct and punctual deliveries by Supplier´s
sub-suppliers. Any looming delays will be notified to Customer as soon as possible. The period for
delivery has been observed if the item to be delivered has left the plant before the period has
ended or if Customer has been notified that it is ready for dis- patch.
5.3 The terms of delivery shall be reasonably extended in the event of measures taken due to
industrial disputes – especially strikes and lockouts – or if unforeseen obstacles should occur
which lie outside Supplier’s command, if said obstacles can be demonstrated to have a substantial
influence on the completion or delivery of the item to be delivered. The same shall apply if such
circumstances occur at a sub-supplier. Supplier shall notify Customer of the beginning and end of
such obstacles as soon as possible.
5.4 Should Customer suffer damages because of a delay resulting from Supplier’s own culpability, it
shall be entitled to claim default compensation, whereby further claims shall be excluded. For each
full week of delay, such compensation shall be 0.5 % of the value of that part of the delivery which
can either not be used in time or in accordance with the contract, however, not more than a total 5
% thereof. The exclusion of liability pursuant to the first sentence above shall not apply insofar as
Supplier, its legal representatives or management have caused the delay through intent or gross
negligence or the timeliness of performance has been negotiated as a principal covenant
(commercial transaction where time is of the essence of the contract).
5.5 Should delivery be delayed at Customer’s request or due to circumstances attributable to it,
beginning one month subsequent to notification of the readiness for dispatch, it shall be charged
for the resulting costs; in the event of warehousing at Supplier’s plant, at least 0.5 % of the
invoiced amount shall be charged for each month. Supplier is entitled, however, to otherwise
dispose of the item of delivery after the expiration of a reasonably determined period or to supply
Customer within a reasonably extended period.
5.6 The observance of the terms of delivery is contingent upon Customer’s fulfilment of its contractual
duties.
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6.1 Shipment and the type of shipment shall be chosen by Supplier, Customer shall bear the costs
thereof.
6.2 Risk shall pass to Customer not later than upon the sending of the items to be delivered even in
the event of partial deliveries or when Supplier undertook additional services, e. g. shipping costs
or delivery and installation. At the re- quest of Customer, Supplier shall insure the shipment at
Customer’s expense against theft and breakage, transport, fire and water damage as well as other
insurable risks.
6.3 Should a shipment be delayed or fail due to circumstances for which Customer is responsible, risk
shall pass on the day Customer was notified of the readiness of the shipment; however, Supplier
shall obtain the requested insurances at Customer’s expense.
6.4 Notwithstanding the rights under Section 8 delivered items are to be accepted by the Customer
even if they have insignificant defects.
6.5 Partial deliveries are permissible insofar as they are reasonable for Customer. This is in particular
the case, when (i) the partial delivery can be used by Customer in accordance with the
contractually intended use; (ii) delivery of the remaining contractual items is ensured and (iii)
Customer incurs no considerable additional expenses or extra costs. - Retention of Title
7.1 Supplier shall retain title to the item delivered until all payments arising from the Delivery Contract
have been received. If the retention of title stipulated above is not legally effective in the country in
which the goods subject to retention of title are delivered or in which they have been processed, it
is hereby agreed that it will be replaced by the closest legally valid form of security in accordance
with the law of the country in question.
7.2 Supplier is entitled to obtain insurance for the item delivered at Customer’s cost against theft and
breakage, fire, water and other damages insofar as Customer has not itself demonstrated that it
has taken out insurance.
7.3 As long as Supplier holds title to the item delivered, Customer may neither sell, pledge nor give as
security the item and shall handle it with due care. In the event of attachments and seizures or
other disposals by third parties, Customer must point out Supplier’s title and inform Supplier
thereof without delay to ensure that Supplier may enforce its property rights. Should the third party
be unable to refund the judicial or extrajudicial costs incurred by Supplier in this regard, then
Customer shall be liable for those costs.
7.4 Any processing of the item delivered is always carried out for Supplier as owner. In the event of
processing, combination or intermixture with other items by Customer, Supplier shall become co-
owner. The shares are determined by the relationship of the value of the items at the time of
processing, combination or intermixture. In the event that the delivered item is combined or
intermixed with a main item of Customer or a third party, Customer already assigns any rights it
may have regarding the new item to Supplier. In the event that Customer combines or intermixes
the delivered item for remuneration with a main item of a third party, Customer hereby already
assigns his claim for remuneration against the third party to Supplier. Customer also assigns all
claims that arise against a third party in the event of a combination of the delivered item with a plot
of land to Supplier. Supplier accepts the aforementioned assignments.
7.5 If Customer is in breach of contract, especially by means of default with payments, Supplier is
entitled to repossession after giving notice of default and Customer is obligated to surrender the
respective item The assertion of the retention of title and the seizure by Supplier of the item
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delivered are deemed to be a rescission of contract. - Duty to give Notice of Defects and Liabilities for Defects of the Delivery
8.1 To the exclusion of further claims but without prejudice to Section 11 Supplier is liable for defects
in the delivery, including the absence of warranted qualities, as follows:
Material defects
8.2 Customer must examine the item of delivery upon receipt and give notice in writing of visible
defects without undue delay. Customary or slight deviations or deviations which could not be
technically avoided in the quality, colour and form of the goods, also from the descriptions of the
goods on offer or from samples, do not count as defects and can- not be made the subject of a
complaint. Customer shall report defects which were not visible upon receipt of the goods in writing
and without undue delay after they appear. Should Customer not comply with this obligation, all
claims of Customer connected to the defect which was not reported shall be excluded, irrespective
of the legal grounds on which they are based.
8.3 All parts which are found, due to circumstances existing prior to the passing of risk, to be
unserviceable or whose serviceability is not insubstantially impaired during the first twelve months
after delivery – in particular, due to defective design, poor materials or defective construction –
shall be repaired or newly delivered free of charge and at Sup- plier’s option and in its reasonable
discretion. Replaced parts shall become the property of Supplier. Supplier’s liability for important
third-party products shall be limited to the assignment of its claims against Supplier of the third-
party product. If Customer is unsuccessful in obtaining compensation from Supplier of the third-
party product after fruitless court proceedings, or if such proceedings are to be considered
pointless, then Supplier’s liability shall be revived.
8.4 Customer’s right to raise claims because of defects shall become time barred 12 months from the
timely notification of the defect; however, not before the guarantee period has expired.
8.5 No guarantee shall be assumed for damages which have arisen due to the following
circumstances; inappropriate or improper applications; faulty installation or commissioning by
Customer or a third party; excessive wear and tear; corrosion, erosion, abrasion and
agglomeration; faulty or careless treatment; improper maintenance; unsuitable operating materials;
substituted materials; inadequate construction works; unsuitable building site; chemical, electro-
mechanical or electrical influences insofar as Supplier is not responsible for them.
8.6 By arrangement with Supplier, Customer shall give Supplier the necessary time and opportunity to
carry out the improvements or to supply replacements which appear necessary in its reasonable
discretion. Customer shall only have the right to remove the defect itself or through a third party
and to demand from Supplier compensation for the necessary costs (a) in emergency cases where
operating security is endangered or (b) in order to avert disproportionately large damages, in which
case Supplier is to be notified immediately, or (c) if Supplier is in default with the removal of
defects.
8.7 Of the costs directly resulting from the improvement or supply of replacements, Supplier shall bear
the costs of the replaced parts including shipping and reasonable costs of removal and installation
– insofar as the complaint is proven to be justified – further, the reasonable costs of any necessary
provision of its technicians and their assistants, should this be reasonably warranted by the
individual circumstances.
8.8 The warranty period for the replacement parts and the improvement shall be 6 months; however, it
shall at least run until the expiration of the original warranty period for the item delivered. The
period of liability for defects in the item delivered shall be extended in accordance with the length
of the interruption of operations caused by the repair work.
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8.9 Liability for the effects of improper alterations, repair or maintenance undertaken by Customer or a
third party without Supplier’s prior approval is excluded.
Defects of title
8.10 Should the use of the delivered item infringe intellectual property rights, Supplier shall, at its
expense, obtain the necessary license to essentially ensure the further use of the item by
Customer or modify the item in such a reasonable way that there no longer is an infringement. In
the event that this is not possible within reasonable economic terms or reasonable time, Customer
may rescind the contract. Under the aforementioned conditions, Supplier may also rescind the
contract.
8.11 Furthermore, Supplier shall indemnify and hold harmless Customer from all – undisputed or
determined by a final and binding decision – claims of the rights owner.
8.12 The obligations mentioned in Section 8.10 shall be – subject to Section 11 – conclusive for any
infringement of intellectual property rights. They only apply when:
- Customer notifies Supplier of any claimed infringement of intellectual property rights without
delay; - Customer reasonably supports Supplier in its defense against the infringement claim or
provides Supplier the opportunity to modify the item according to Section 8.10; - the defense against the claims remains at the sole discretion of Supplier, including the
possibility of out-of-court settlements; - the defect of title was not caused by instructions issued by Customer and
- the infringement was not caused by either unauthorized changes by Customer to the
delivered item or the item not being used in accordance with the contract specifications.
- Liability for Ancillary Duties
9.1 If the item delivered cannot be used by Customer in accordance with the contract because
Supplier has culpably failed to implement suggestions and advice given before or after the
conclusion of the contract or to perform other an-cillary contractual duties – in particular
instructions for operation and maintenance of the item delivered – or has done so incorrectly, the
provisions of Section 8 and 11 shall apply accordingly to the exclusion of further claims by
Custom- er. - Right of Customer to Rescission
10.1 Customer may rescind the contract if Supplier’s performance of all of its contractual duties
becomes definitely impossible prior to the passing of risk. Customer may also rescind the contract,
if, in the case of an order for similar items, the execution of a part of the delivery becomes
impossible as to quantities, and it has a justified interest in rejecting a partial delivery. If this is not
the case, Customer shall pay the consideration for the respective partial delivery. The same shall
be true in the event of Supplier’s subjective incapacity.
10.2 If there is a default in performance within the meaning of Section 5 and should Customer grant
Supplier, who is in default, a reasonable extension with the express declaration that it will refuse
the acceptance of performance after the expiry of this period, Customer is entitled to termination if
the extension is not observed.
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10.3 Should impossibility occur during a delay in acceptance or because of Customer’s culpability, the
latter shall remain obligated to give consideration.
10.4 In accordance with statutory law, Customer shall have a further right to rescind the contract if
Supplier culpably fails to remedy a defector deliver a replacement within the reasonably set time
limit – considering the statutory exceptions – regarding a defect within the meaning of the General
Terms and Conditions for which it is liable. In the event of only an immaterial defect, Customer
shall only have the right to adequately reduce the contract price. Apart from that a re- duction is
excluded. - Exclusion of Liability
11.1 Supplier is not liable – on whatever legal grounds – for the ordinary negligence of its legal
representatives, employees or persons used to perform its obligations, except in cases of breach
of material contract provisions (Cardinal du- ties). Cardinal duties are those obligations on whose
performance the other party to the contract relies and may legitimately rely because they are
essential for the proper performance of the contract.
11.2 Insofar as Supplier is – on the merits – liable based on the aforementioned, its liability is limited to
those damages that Supplier could reasonable foresee at the time of the conclusion of the contract
as possible results of a breach or should have foreseen in pursuance of due diligence. Indirect or
consequential damage, resulting from defects of the delivered item, are only eligible for
compensation if they are to be typically expected under normal use of the delivered items.
11.3 In the event of liability for ordinary negligence, Supplier’s liability for property damage and resulting
further pecuniary loss is limited to the amount of EUR 500.000,00 per case, even if cardinal duties
are breached.
11.4 The abovementioned limitations of liability also apply mutatis mutandis in favour of legal
representatives, employees and other persons used to perform its obligations by Supplier.
11.5 The limitations contained in this Section 11 – as well as any other limitation of liability contained in
this General Terms and Conditions – do not apply to Supplier’s liability for intentional behaviour,
warranted qualities, damage from injury to life, body or health or under the product liability law
(ProdHaftG). - Safety regulations
12.1 Customer is hereby expressly reminded to comply with the respective safety regulations. Insofar
as local regulations of the country the item is delivered to apply, in particular regarding approval,
maintenance and handling of the deliv- ered items, Customer shall ensure compliance with the
respective regulations. In this regard, customer indemnifies and holds harmless Supplier from all
claims. - Place of performance/place of jurisdiction/applicable law
13.1 Place of performance for all obligations in connection with this contract or its rescission is
Grevenbroich.
13.2 Place of jurisdiction for all disputes concerning the validity, the origin and the termination of the
respective contracts between Supplier and Customer and for all disputes concerning the rights and
duties from these contracts is at the
13.3 seat of Supplier, if Customer is a merchant or legal entity under public law and public law special
fund. At its option, Supplier is also entitled to institute legal proceedings at Customer’s general
legal venue.
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13.4 The law of the Federal Republic of Germany is applicable exclusively, with exclusion of the
German Private International Law (IPR) and the UN-Convention on the International Sale of Goods
(CISG). - Final provisions
14.1 Declarations and notifications of Customer are only valid if they are made in writing. Supplements
and/or modifications or amendments of the respective contracts have to be confirmed by Supplier
in writing. This applies also on modifications or the revocation of the requirement of the written
form.
14.2 In accordance with the Federal Data Protection Act, Supplier points out that data received on
account of the business relations with Customer is stored and processed.
14.3 If any provision of the contract concluded between Supplier and Customer or any of these
conditions should be or become ineffective, or if a gap should become apparent, this does not
affect the validity of the remaining provisions. A suitable regulation is to be applicable in place of a
gap, which – in as far as is legally possible – is closest to what the contract parties wished or
corresponds to what they would have wished in keeping with the object and purpose of this
contract, had they considered this point.