GENERAL TERMS AND CONDITIONS OF BUSINESS AND PAYMENT

der Rudolf Schad GmbH & Co. KG, Maschinenbau

1. General

These General Terms and Conditions of Sale apply to all contracts with the company, including such as may be entered into in the future. The only terms and conditions of sale applicable to the sale, delivery and provision of services shall be these General Terms and Conditions.

Any deviations from these General Terms and Conditions of Sale shall be valid only if confirmed by us in writing.

2. Quotations and contract conclusion

Our quotations are subject to confirmation. All and any verbal agreements, assurances or guarantees made or given by our employees in connection with the conclusion of the contract shall be binding only if confirmed by us in writing.

We honour our quotations for a period of 30 calendar days.

All details, such as measurements, weights, illustrations, descriptions, assembly sketches, drawings in sample books, price lists, catalogues and brochures, are approximate and although worked out as well as possible are therefore for us not binding.

Modifications of all placed orders or manufacturing missions of every kind from the customer (order giver) must be prompt advisable without informing of request to us in written from.

The same shall apply to all details stated in relation to works, tools, models, sketches and drawings. These shall remain our property. We reserve all rights pursuant to ownership and copyright law of commercial exploitation of all documents and said documents may not be made accessible to third parties.
In the case of custom-made items or deliveries of goods bought in from external suppliers we reserve the right to make a delivery of up to 20% more or less than ordered.

For works contracts the 'purchaser' for the purpose of these terms and conditions shall be the 'party placing the order'.

3. Prices

All prices are ex-works/warehouse, plus carriage, packaging and value added tax. Unless otherwise agreed, the prices and terms of our price list or quotation at the time of contract conclusion shall apply.

If between conclusion of the contract and delivery the cost-estimation factors have unforeseeably changed, we shall be entitled to pass on any increases in the prices for semi-finished goods, raw materials and supplies, energy costs, wage and salary increases pursuant to collective bargaining agreements and any increases in taxation.

4. Deliveries, delivery deadlines and delivery dates

Despite every effort being made to adhere to delivery dates, all agreed dates are non-binding. In the event of acts of God or other impediments beyond our control affecting our ability to make the delivery, the delivery deadline shall be extended by the duration of the impediment.
The client shall be notified both of the occurrence of the problem and of its anticipated duration.

Should delivery be temporarily or permanently impossible, both parties shall have the right to cancel any individual order without having to pay compensation. If dates are not adhered to, the client shall be entitled to cancel the contract if we are responsible for the non-adherence to the delivery date and the client has given us a reasonable further deadline to which we have also failed to adhere. We shall be entitled to make partial deliveries.

Excluded from this are any custom-made items that have already been begun and any special orders of goods bought in from external suppliers. As far as is possible, we shall speak to the suppliers and try to cancel said orders. Should this not be possible, the purchaser (the party placing the order) shall bear any costs incurred.

Deliveries are made ex-works. Delivery shall at all times be at the client's risk and cost, including if we are using our own vehicles. Risk shall transfer to the purchaser as soon as the consignments have been handed over to the person carrying out the transportation.
If at the client's request dispatch is delayed, risk shall transfer to the client upon announcement that the consignment is ready to be dispatched. We shall be entitled but not obliged to insure deliveries on behalf and on account of the purchaser.

Delivery routes and methods shall be determined by us at our discretion with no warranty that this shall be the cheapest form of transportation. Packaging shall be invoiced at cost price and not taken back.

5. Terms of payment

Unless otherwise agreed, payment must be made in full immediately upon receipt of the invoice. Payment must be made in cash, by direct debit or bank transfer.
This shall apply in particular to repairs, maintenance jobs and contract work.
All invoice amounts below €100 shall be payable at once, strictly net. In individual cases we reserve the right to levy a minimum goods value surcharge of €25.

In the case of deliveries to purchasers not known to us we expressly reserve the right to demand cash on delivery or prepayment.

We reserve the right in any given instance to have acceptance credits and client bills of exchange approved. Bills of exchange, cheques and direct debits shall be regarded as payment only once they have been redeemed and credited to our bank account. Any discount charges and other costs shall be borne by the purchaser.

The client shall have the right to any offsetting only if its counter claim is undisputed or has been judged valid by a court of law. The client shall not be permitted to exercise any right to withhold payment arising from earlier or different transactions pursuant to the current business relationship.

If the agreed payment date is missed, the client shall without further ado be deemed to be in arrears. In such event, we shall be entitled to charge late payment interest at the level of 5% above the prevailing base rate. The right to claim for any higher loss shall remain open to us. Simultaneously all existing payment obligations towards us shall become due and we shall thenceforth have the right to provide our services against cash payment only.

In any circumstances that impair the client's creditworthiness we shall be able to cancel the delivery contract or exercise a right of extraordinary termination if the client fails to provide security within a deadline to be determined by us.

There must be no delay in payment due to the acceptance process for bills of exchange. Should any such delay arise, the bill of exchange will be returned and the client shall be obliged to pay cash.
Any agreed discount shall relate always only to the invoice value of the discountable goods, deliveries and services, exclusive of carriage, and shall be conditional on full settlement of all due receivables from the purchaser at the time of the discount being made.

If after conclusion of the contract it becomes evident that due to the purchaser's inability to fulfil its obligations our right to payment is at risk, we shall be entitled at avail ourselves of rights arising from clause 321 of the German Civil Code (defence of insecurity). We shall then be entitled to make all non-lapsed receivables arising from the current business relationship with the client due for payment. Furthermore the defence of insecurity shall extend to all further outstanding deliveries and services arising from the business relationship with the purchaser.

Invoices

Invoices may send via post or e-mail at our option.  The client agrees to the electronic transmission of the invoices. Invoices are sent electronically in pdf format to the client´s e-mail address. On request the invoice can be sent as a printed hard copy invoice.

6. Formal acceptance processes

If a formal acceptance process has been agreed, this can be performed only in the factory from which the goods are being delivered or in our warehouse immediately after announcement that the goods are ready to be inspected. All personal acceptance process costs shall be borne by the purchaser. If for reasons beyond our control the acceptance process fails to take place, fails to take place on time or fails to be completed, we shall be entitled to dispatch the goods without formal acceptance or to store the goods at the client's cost and risk and to charge the client for so doing.

7. Retention of title

Until payment of all our invoices, regardless of the reason for any delay, our deliveries shall remain our property, even if the purchase price for any specifically designated claims has been paid. Where an open account is being operated, retention of title shall act as security against our balance of receivables. Any processing of the goods shall be done on our behalf without placing us under any obligation. Acquisition of title pursuant to clause 950 of the German Civil Code shall not apply. The processed goods shall serve as our security in the amount of the invoice value of the goods over which we retain title.

Where payment is being made by cheque or bill of exchange the retention of title shall continue until encashment of the cheque or bill by the party placing the order. Where the goods over which we retain title are further processed by the client with goods not belonging to us we shall be assigned joint ownership of the new item in the ratio of the value of the retained title goods to the other processed goods at the time of the processing. In all other respects the same shall apply to the new item produced from the processing as for the retained title goods. It shall be classed as retained title goods for the purpose of these terms and conditions.

The client's receivables from the selling on or disposal of the retained title goods are assigned even now to us. This shall apply regardless of whether the retained title goods are sold on or disposed of with or without agreement and whether they are sold on or disposed of to an employee or to multiple employees. The assigned receivables shall serve as security in the sum of the value of the retained title goods sold or disposed of in each instance.

If, with or without agreement, the client sells or disposes of the retained title goods together with other goods not belonging to us, the assignment of the receivables shall apply only in the sum of the value of the retained title goods. The client may sell our property only in the course of normal business and as long as the client is not in payment arrears.

The client shall be entitled and authorised to sell on or further dispose of the retained title goods on the proviso that the right to receivables from such selling on or disposal transfers to us as per the paragraphs above. The client shall not be entitled to dispose of the retained title goods in any other way. Upon request from us the client shall be obliged to inform its client of the assignment for the purpose of payment being made to us. If the value of the security existing in our favour exceeds our receivables in total by more than 20%, then upon request from the client we shall be obliged to that extent to release securities of our choosing.

The client must inform us without delay of any charge or other encumbrance placed on our claim by any third party (e.g. bailiffs). If the purchaser falls into payment arrears or fails at the due date to honour a bill of exchange, we shall be entitled to take back the retained title goods and for this purpose to enter the client's premises, or have our authorised agents do so, in order to enforce our retention of title.

8. Warranty and liability for defects

The purchaser must check for any material defects to the goods without delay and report any found in writing by no later than seven days after delivery. Any hidden defects must be reported in writing as soon as they are noticed. The goods shall otherwise be deemed approved and accepted.

Where legitimate complaints about defects are made within the due deadline, we shall be entitled at our discretion to remedy the defect or supply replacements. If we let a reasonable deadline placed on us pass without having remedied the defect or supplied a replacement, the purchaser shall be entitled to cancel the contract. Within the limits of our business terms and conditions no other warranty claims, especially to compensation as per clause 463 of the German Civil Code on positive violation of contractual duty, shall be entertained.

We shall not be liable for any errors resulting from documents provided by the party placing the order (drawings, templates and such like). We shall be entitled to decline to remedy defects if and for as long as the client fails to meet its obligations. Any warranty claims made by the client shall become null and void if without our agreement any modifications are made to the goods produced or damage occurs to them due to any cause beyond our control.

Insofar as any damage has not been caused by us wilfully or through gross negligence, such as incapacity to perform the work, positive violation of contractual duty, culpa in contrahendo or illegal action, no claims of liability against us or any of our agents shall be entertained.
Claims pursuant to the German Product Liability Act relating to personal injury or damage to items used privately shall be unaffected by this provision.

The warranty period shall be 6 months from date of delivery.
Excluded from the warranty for the machine made by us are consumables and all machine parts subject to technical wear.
This applies also to improper use.

We specifically draw attention to the fact that only original replacement parts from Rudolf Schad GmbH&Co.KG may be used under the terms of the guarantee. Our warranty obligations shall become null and void if any intervention is made by the purchaser personally or through any third party by unqualified personnel into the electrical or mechanical inner workings of the items supplied. We specifically draw the client's attention to the latest version of the operating manual for our machine.

In the case of machines or goods that are being sold as externally supplied goods, the manufacturer's definitive warranty conditions, operating manuals and relevant documents shall expressly apply. In relation to this Rudolf Schad GmbH&Co.KG, being the reseller, shall provide no guarantees or accept any warranty claims.
These can thus also not be made against Rudolf Schad GmbH&Co.KG.

9. Severability

Should any individual provision of the agreement between us and our client be or become invalid or contestable, this shall not affect the remaining provisions. The remaining provisions are instead to be interpreted taking into account the intended commercial objective that was being pursued by the invalid or contestable provision.

10. General limitation of liability

Pursuant to any breach of contractual or non-contractual duties, in particular pursuant to incapacity, default, culpa in contrahendo or any illegal action, we shall be liable, including on behalf of our senior employees and other authorised agents, only in cases of wilful intent or gross negligence, limited to the level of losses predictable at the time of contract conclusion for contracts of this type.

These limitations shall not apply in the case of a culpable breach of material contractual obligations, insofar as achievement of the contract's purpose is put at risk, in cases of mandatory liability as per the Product Liability Act, in cases of injury to life, body or health and also not if and insofar as we have fraudulently failed to disclose any defects to the goods or guaranteed their absence. The provisions relating to the burden of proof remain unaffected by this.

Unless otherwise agreed, any contractual rights that the purchaser may have to make claims against us pursuant to or in connection with the delivery of the goods shall lapse one year after the goods are delivered, save only if such claims are based on replacement for an injury-related or health-related loss or on a typically foreseeable loss or relate to wilful intent or gross negligence on the part of the vendor.

Our liability arising from wilful or grossly negligent breaches of duty and the lapsing of statutory rights of claim to recourse remain unaffected by this.
In cases where contracts are retrospectively fulfilled the period of limitation does not start to run anew.

11. Place of performance and jurisdiction

The place of performance for all contractual obligations shall be the company's premises in D-36154 Hosenfeld / Fulda and for all disputes, including any pursuant to a cheque or bill of exchange process, the court for the company's home city (Fulda) shall be responsible if the ordering party is a sole trader, a corporate entity or a special public body.

The applicable law for the contractual relationship shall be exclusively German law. The harmonised legislation on the conclusion of international contracts for the sale of goods shall not apply.

12. Miscellaneous

If a purchaser based outside of the Federal Republic of Germany (a foreign client) or its agent collects or transports goods or sends these abroad, the purchaser must provide us with the proof of export required for taxation purposes. If this proof is not provided, the purchaser must pay the level of value added tax on the invoice amount applicable for deliveries within the Federal Republic of Germany.

In the case of deliveries from the Federal Republic of Germany to other EU member states, the purchaser must notify us prior to the delivery being made of it sales tax identification number that it uses for the taxation of purchases within the EU. Otherwise, in addition to the agreed purchase price, the client shall have to pay the sales tax that we shall duly owe.

Should any provision of these General Terms and Conditions of Supply and Payment be or become invalid, this shall not affect the validity of the remaining provisions.