General Terms and Conditions of Sale of SCHRAMM GmbH for Business Transactions

1. General, Scope of Application
1. These General Terms and Conditions of Sale (the “Terms”) apply to all our business relationships with our customers (“Buyer”). These Terms only apply if the Buyer is an entrepreneur (Sec. 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), a legal entity under public law or a special fund under public law.
2. These Terms particularly apply to contracts for the sale and/or supply of moveable items (“Goods”), regardless of whether we have produced the Goods ourselves or have purchased these from suppliers (Secs. 433 and 650 German Civil Code (Bürgerliches Gesetzbuch - BGB)). Unless agreed otherwise, the Terms in the version valid at the time the Buyer’s order is placed or in any case the version most recently communicated to it in text form apply as a master agreement for similar future contracts, without us having to refer to these again in each individual case.
3. These Terms apply exclusively. Deviating, contradictory or supplementary general terms and conditions of the Buyer only form part of the agreement if and to the extent that we have expressly consented to their application. This requirement for consent applies in any event, for example even if we carry out delivery to the Buyer without reservation while being aware of its general terms and conditions.
4. Individual agreements (including collateral agreements, additions and amendments) entered into in the individual case with the Buyer always take precedence over these Terms. As for the content of such agreements, our written confirmation or a contract (in each case in text form) is authoritative, subject to evidence to the contrary.
5. Legally relevant declarations and notices which are to be provided to us by the Buyer after conclusion of the contract (e.g. deadlines, payment reminders, notice of rescission or price reduction) are only valid if made in text form.
6. References to the application of statutory regulations are for clarification purposes only. Statutory regulations therefore also apply without such clarification, unless they are directly amended or expressly excluded in these Terms.
2. Conclusion of Contract
1. Our offers are subject to alteration and non-binding. In particular, we reserve the right to make prior sales. This also applies if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, computations, calculations, reference to DIN standards), other product descriptions or documents – including in electronic form – to which we reserve all ownership rights and copyrights.
2. The ordering of Goods by the Buyer is deemed a binding offer of a contract. Unless stated otherwise in the order, we are entitled to accept this offer of a contract within two (2) weeks of receiving such. Acceptance can be declared either in text form (e.g. order confirmation by fax or e-mail) or by delivering the Goods to the Buyer.
3. In contrast, oral declarations by our employees do not constitute declarations of acceptance of a contract. Similarly, any oral agreements with our employees (including with field staff and at the works) are only binding after being confirmed by us in text form.
4. When we accept orders by the Buyer, we assume that it is creditworthy. In individual cases, we reserve the right to make our declaration of acceptance dependent on provision of a bank guarantee or a liquidity commitment from the Buyer’s bank to the value of the anticipated invoice claim.
3. Delivery Time and Delay in Delivery
1. The delivery period shall be agreed individually or stated by us upon acceptance of the order.
2. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the performance or of performance components), we are entitled to extend the delivery deadline by the duration of the non-availability. For this purpose, we will inform the Buyer immediately and at the same time inform him of the expected new delivery date. If there is already a delay in delivery at the time of the occurrence of the non-availability, we shall not be liable for any delay during the non-availability. If the performance/performance components is not available within the new delivery period either, we are entitled to rescind the contract completely or partially; we will reimburse any consideration already provided by the Buyer without undue delay. Unavailability is in this sense in particular deemed to be deliveries to us by our suppliers which do not arrive in due time if we have entered into a congruent hedging transaction, if neither we nor our suppliers are at fault or if we are not obliged to procure such in the individual case. In addition, a case of non-availability of performance shall be deemed to exist in the case of an event that is unforeseeable or beyond our reasonable control (including but not limited to natural disasters, pandemics, epidemics, terrorism, war, strikes, official measures, labour or material shortages, embargoes, strikes).
3. Default of delivery on our part is determined by the applicable statutory provisions. A warning notice from the Buyer with a reasonable grace period of at least eight (8) days is always required.
4. The Buyer's rights in accordance with § 8 of these Terms as well as its and our statutory rights, in particular in the event of any exclusion of the obligation to provide performance (e.g. due the impossibility or unreasonableness of the performance and/or subsequent performance), remain unaffected.
4. Delivery, Partial Delivery, Passing of Risk, Delayed Acceptance, On-Call Purchases
1. Delivery is made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the Buyer, the Goods will be shipped to a different destination (sales shipment). Unless agreed otherwise, we are entitled to determine the type of shipment (in particular transport company, shipment route, packaging) ourselves.
2. We are entitled to deliver Goods ordered at the same time in several instalments where we agree this individually with the Buyer or where this is reasonable for the Buyer. If we are unable to deliver part of the Goods ordered at the same time at all, the Buyer may only assert rights in relation to the delivered part due to the non-performance of the other part if it is not reasonable to expect it to keep the Goods delivered without the items that are not delivered; this is in particular the case if the Buyer can credibly show that the Goods are only of use to it in their entirety.
3. The risk of accidental loss and accidental deterioration of the Goods passes to the Buyer at the latest upon handover. In the case of a sales shipment, however, the risk of accidental loss and accidental deterioration of the Goods, as well as the risk of delay already passes upon delivery of the Goods to the forwarding agent, freight forwarder or any other person or institution designated to execute the delivery. If acceptance of Goods has been agreed, this is authoritative for the passing of risk. The statutory provisions of legislation governing contracts for work apply also otherwise for any agreed acceptance of Goods. Handover or acceptance of Goods is deemed to have taken place if the Buyer is in default of acceptance. We are expressly not obliged to insure Goods stored by us as a result of delayed acceptance.
4. If the Buyer defaults on acceptance, fails to meet its obligations to cooperate or our delivery is delayed for other reasons for which the Buyer is responsible, the whole purchase price will become due for payment immediately, with any agreed payment deadlines ceasing to apply. In addition, we are entitled to demand compensation of the damage resulting from the delay, including additional expenses (e.g. warehouse costs). We calculate lump-sum compensation for this of 0.5% of the net price (delivery value) for each complete calendar week, but overall a maximum of five percent (5%) of the delivery value of the Goods that were not accepted on time, beginning on the delivery date (in the absence of a delivery date) upon notification that the Goods are ready for shipment. The evidence of higher damage and our statutory claims (in particular reimbursement of additional expenses, appropriate compensation, rescission, termination) remain unaffected; the lump-sum compensation is, however, to be offset against further damage claims. The Buyer remains at liberty to prove that we have not incurred any damage at all or only significantly less damage than the above lump-sum compensation.
5. For on-call purchases, unless otherwise agreed the Buyer must accept the Goods within four months of conclusion of the contract. The Buyer automatically becomes in default of acceptance in relation to Goods that are not accepted within the due period.
5. Prices, Price Increases, Payment Terms 
1. Unless agreed otherwise in the individual case, our prices, ex warehouse plus statutory VAT, which are valid in each case at the time the contract is concluded, apply.
2. The prices stated by us are calculated on the basis of the purchase prices at the time the price list is prepared. The Buyer and we are aware that the prices for the manufacture of the Goods (e.g. material costs) can change considerably. If these prices increase or decrease by more than 5 % for reasons for which neither the Buyer nor we are responsible, each contractual party shall be entitled to demand that the other adjust the purchase price stated in the order confirmation by this factor, provided that there are more than eight (8) weeks between the conclusion of the contract and the due date of delivery. The Buyer will be informed about the price increase, the increased purchase price and the reasons for the increase in text form. In this case, the Buyer is free to rescind the contract within a period of three working days.
3. In the case of sales shipments (§ 4 (1) of these Terms), the Buyer bears transport costs ex warehouse and the costs of any transport insurance which may be desired by the Buyer. Any customs duties, fees, taxes and other public charges are borne by the Buyer.
4. The purchase price is due and payable within 30 days of invoicing and delivery or acceptance of the Goods. We are, however, even in an ongoing business relationship, entitled at any time to only carry out a delivery completely or partially against advance payment; we declare this reservation at the latest upon order confirmation. Moreover, we may make all outstanding claims against the Buyer due for payment immediately (but no earlier than the time of delivery) if the Buyer is default on a payment to us. We will inform the Buyer of this in text form; respite agreements are explicitly excluded from this.
5. The Buyer is in default upon expiry of the above payment deadlines. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further default damage. Our claim against merchants for commercial interest on maturity (Sec. 353 German Commercial Code (Handelsgesetzbuch - HGB)) remains unaffected.
6. The Buyer has set-off or retention rights only to the extent that its claim has been finally established by a court of law, is undisputed or recognized by us. In case of defects in the delivery, the Buyer's opposing rights, in particular in accordance with § 7 (6) sentence 2 of these Terms, remain unaffected.
7. If it becomes apparent after conclusion of the contract (e.g. due to an application for the opening of insolvency proceedings) that our claim to the purchase price is jeopardized due to the Buyer's inability to perform, we are entitled in accordance with statutory regulations to refuse performance and - if applicable after setting a deadline - to rescind the contract (Sec. 321 German Civil Code). In the case of contracts pertaining to the manufacture of non-fungible items (individual manufacture), we can declare rescission immediately; the statutory regulations with respect to dispensing with the setting of deadline remain unaffected.
8. Bills of exchange and cheques will be accepted subject to the option of discounting and only as security. We reserve the right to return the documents at any time. All costs, including for the discounting, will be at the Buyer’s expense.
6. Reservation of Title
1. We reserve ownership of the Goods sold until full payment of all our current and future claims under the purchase contract and any ongoing business relationship (secured claims).
2. The Buyer must treat the Goods covered by reservation of title carefully. It must insure them against fire, water and theft damage at their replacement value.
3. The Goods subject to reservation of title may not until full payment of the secured claims be pledged or transferred by way of security to third parties. The Buyer must inform us in text form without undue delay if an application for the opening of insolvency proceedings has been filed or to the extent that third parties lay claim to the Goods belonging to us (e.g. by attachment).
4. If the Buyer is in breach of contract, in particular fails to pay the due purchase price, we are entitled in accordance with the applicable statutory regulations to rescind the contract and/or to demand return of the Goods on the basis of reservation of title. The demand for return of the Goods does not at the same time include any declaration of rescission; rather, we are entitled to only demand return of the Goods and to reserve the right to rescind the contract. If the Buyer does not pay the due purchase price, we can only assert these rights if we have previously set the Buyer an appropriate deadline without success or such setting of a deadline can be dispensed with in accordance with the applicable statutory regulations.
5. Until revocation in accordance with sub-clause (c) below, the Buyer is entitled to resell and/or process the Goods subject to retention of title during the normal course of business. In this case, the following provisions in addition apply:
1. The reservation of title also covers the products at their full value which are created as a result of the processing, mixing or combining of our Goods, whereby we are deemed the manufacturer. If in the event of processing, mixing or combining with third-party goods, their ownership rights remain in place, we acquire co-ownership in the ratio of the invoice values in the processed, mixed or combined goods. The same otherwise applies for the product created as for the Goods delivered subject to retention of title.
2. The Buyer hereby as security already assigns to us the claims arising from the resale of the Goods or the product in total or in the amount of any co-ownership share we may have in accordance with the preceding paragraph. We accept this assignment. The Buyer’s obligations specified in sub-clause (2) also apply with respect to the assigned claims.
3. The Buyer, besides us, remains authorised to collect the claim. We agree not to collect the claim as long as the Buyer meets its payment obligations to us, no defect in its ability to perform exists and we do not assert retention of title by exercising a right in accordance with sub-clause (4). If this, however, is the case, we can demand that the Buyer discloses the assigned claims and their debtors to us, provides all information required to collect the claims, hands over the associated documents and informs the debtors (third parties) about the assignment. In this case we are also entitled to revoke the Buyer’s authorisation to resell and process the Goods subject to retention of title.
4. If the realisable value of all collateral exceeds our claims by more than 10%, we will at the request of the Buyer release the collateral of our choice.

1. Buyer´s Claims for Defects 
1. Unless provided for otherwise below, the applicable statutory provisions apply to the Buyer's rights in the event of material defects and defects in title (including incorrect or short delivery, as well as improper installation or defective installation manuals). The statutory special regulations governing final delivery of goods to a consumer remain unaffected in all cases (recourse against suppliers).
2. The basis of our liability for defects is solely the agreement on the quality of the Goods. The product specifications described as such which are provided to the Buyer before its order or have been included in the contract in the same way as these Terms are deemed agreements on the quality of the Goods.
3. If the quality was not agreed, it is to be assessed in accordance with statutory regulations when a defect exists or not (Sec. 434 Para 1 German Civil Code). We do not, however, assume any liability for public statements of third parties (e.g. advertising claims).
4. The Buyer’s claims for defects require that it has met its statutory inspection and defect notification obligations (Secs. 377, 381 of the German Commercial Code (Handelsgesetzbuch – HGB)). If an obvious defect (including wrong and short delivery) or hidden defect becomes apparent upon inspection or later, we are to be notified of this in text form without delay. The notification is deemed to be without undue delay if it is made within 1 week after delivery or, in the case of hidden defects, after discovery of the defect, whereby sending the notification in due time is sufficient in this case as well to comply with this deadline. If the Buyer fails to inspect Goods and/or notify defects property, our liability for the defects that have not been notified is excluded.
5. If the item delivered is defective, we can first of all choose whether we provide subsequent performance by rectifying the defect (repair) or by delivering an item free of defects (replacement delivery). Our right to refuse subsequent performance subject to the applicable statutory requirements remains unaffected.
6. We are entitled to make the subsequent performance owed dependent on payment of the due purchase price by the Buyer. The Buyer is, however, entitled to withhold a part of the purchase price which is appropriate in relation to the defect.
7. The Buyer has to give us the time and opportunity required for the subsequent performance owed and in particular has to hand over the Goods objected to for inspection purposes. In the event of replacement delivery, the Buyer must return the defective item in accordance with the applicable statutory provisions. Subsequent performance does not include either the dismantling of the defective item or the renewed installation if we were not originally obliged to install the item.
8. We bear the expenses required for the purposes of inspection and subsequent performance, in particular transport, infrastructure, work and material costs (not dismantling and installation costs) if a defect actually exists. Otherwise we can demand that the Buyer reimburses us the costs due to an unjustified request for the rectification of a defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable for the Buyer.
9. In urgent cases, e.g. in the event of a risk to operational safety or to avert disproportionate damage, the Buyer has the right to rectify the defect itself and to demand the reimbursement of the expenses objectively required for this. We are to be informed about any such rectification of the defect by the Buyer without undue delay, if possible in advance. The Buyer’s right to rectify the defect does not exist if we would have been entitled to refuse corresponding subsequent performance in accordance with the applicable statutory regulations.
10. (10)If the subsequent performance is unsuccessful twice or if a deadline for subsequent performance to be set by the Buyer expires without any result or can be dispensed with in accordance with the applicable statutory regulations, the Buyer can rescind the purchase agreement or reduce the purchase price. No right of rescission exists, however, in the case of insignificant defects.
11. (11)The Buyer’s claims to damages or the reimbursement of futile expenses also exist for defects only in accordance with § 8 of these Terms and are otherwise excluded.
12. (12)If the defect is due to defective Goods from a supplier of ours and we merely pass on the Goods (third-party goods) to the Buyer, the Buyer is initially entitled to demand that we assign our rights against the supplier to the Buyer so that the Buyer can assert a claim against the supplier. This shall not apply if the defect is due to improper handling of the supplier's goods for which we are responsible. In the event that the Buyer is unable to make a claim against the supplier on account of the defect, we shall be liable to the Buyer in accordance with § 8 of these Terms.
2. Other Liability
1. Unless these Terms including the following provisions state otherwise, we are liable in the event of any breach of contractual and non-contractual obligations in accordance with the applicable statutory provisions.
2. We are liable for damages – based on whatever legal grounds – in the event of fault caused by wilful intent or gross negligence. 
3. Unless the applicable statutory regulations provide for a lesser liability standard (e.g. for due care in one’s own matters), we are in the event of simple negligence only liable
1. for damage based on injury to life, limb or health,
2. for damage based on the not insignificant breach of a material contractual obligation (obligation whose fulfilment makes the proper performance of the contract possible in the first place at all and on compliance with which the contractual party regularly relies and may regularly rely); in this case, however, our liability is limited to the reimbursement of foreseeable damage which typically occurs.
4. The limitations of liability resulting from sub-clause (3) do not apply if we maliciously do not disclose a defect or have assumed a guarantee for the quality of the Goods and for claims of the Buyer in accordance with the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG) or other mandatory law.
5. The limitations of liability arising from these Terms also apply to breaches of duty by or in favour of persons for whose fault we are responsible in accordance with statutory provisions. The limitations of liability resulting from these Terms shall also apply to the personal liability for damages of our employees, workers, staff, suppliers, subcontractors, representatives and persons who we use to perform our obligation.
6. The Buyer can only rescind or terminate the contract due to any breach of an obligation other than a defect if we are responsible for the breach of such obligation. Any free right of the Buyer to terminate the contract is excluded. The statutory requirements and legal consequences otherwise apply.
3. Limitation Period

Notwithstanding from Sec. 438 Para. 1 No. 3 German Civil Code, the general limitation period for claims due to material defects or defects in title is one year commencing upon delivery. This does not apply to claims for defects in the case of recourse according to Sec. 478 German Civil Code (Bürgerliches Gesetzbuch - BGB). If acceptance of Goods has been agreed, the limitation period commences upon acceptance. The special statutory regulations regarding limitation periods (in particular Sec. 438 Para. 1 No. 1 and Para. 3 and Secs. 444 and 445b German Civil Code) remain unaffected.

1. Choice of Law and Jurisdiction
1. These Terms and the contractual relationship between us and the Buyer are governed by the laws of the Federal Republic of Germany, excluding the provisions on conflict of laws under international private law and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
2. The exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the competent court for our place of business in 67722 Winnweiler, Germany. We are, however, in all cases also entitled to file legal action at the place of performance of the delivery obligation in accordance with these Terms or an individual agreement which takes precedence or with the courts which have general jurisdiction for the Buyer. Statutory regulations which take precedence, in particular with respect to exclusive jurisdiction, remain unaffected.
2. Severability Clause, Written Form

(1) Should one or more provisions of these Terms be or become invalid or unenforceable, or should these Terms contain a loophole, the remaining provisions of these Terms shall remain unaffected. The parties undertake to replace the invalid provision by another provision which corresponds to the economic sense and purpose of the valid provision. No verbal collateral agreements shall be made. Amendments to these Terms must be made in writing in order to be effective.

(2) A reference to a written form requirement within these Terms shall be understood as "text form" within the meaning of Sec. 126b German Civil Code (Bürgerliches Gesetzbuch - BGB); i.e. in particular, transmission by fax or e-mail shall suffice.

Status: 08 April 2022