General Terms and Conditions of Sale and Delivery
93333 Neustadt/Donau - Germany
Phone: +49 9445 9564 0
I. Scope of Application
- The delivery of products and services by Scheugenpflug AG is performed solely and exclusively on the basis of the following general terms and conditions of business (hereinafter known as “GTC”). The following terms and conditions apply solely with respect to companies within the sense of Section 14 BGB [German Civil Code], a legal entity under public law or a public-law special fund (hereinafter known as the “Customer”).
- Any contrary terms and conditions apply solely if they have been expressly accepted in writing by Scheugenpflug AG. They do not obligate Scheugenpflug AG even if reference is made to them in an order and Scheugenpflug AG does not object to their application.
- Specific agreements concluded with the Customer in individual cases take priority over these GTC.
II. Quotation and Conclusion of Contract
- Quotations from Scheugenpflug AG are always subject to change. Whenever Scheugenpflug AG supplies products that have been manufactured or provided by third parties, any order confirmations are issued subject to the condition of complete and timely delivery by its suppliers.
- Any documentation such as pictures, drawings, weights and dimensions included with the quotation as well as our brochures are subject to change and non-binding unless they have expressly been designated as binding.
- To the extent reasonable for the Customer (giving due consideration to its interests), Scheugenpflug AG is entitled to modify the design or the manufacture of the products owing to technical or production requirements. The criterion for the reasonableness for the Customer is the impact on the value and the functional capability of the product.
III. Prices and Terms of Payment
- Unless otherwise agreed, prices are shown “ex works” (INCOTERMS 2010), excluding packaging, transport, insurance, assembly and restart, plus the applicable statutory value-added tax.
- Unless otherwise agreed, payments must be effected without any deductions no later than 14 days after delivery or acceptance.
- We reserve the right to adjust prices in the event that additional equipment, apparatus, tools or similar items are required to ensure the functionality of the ordered product and the necessity for such items was not foreseeable at the time the quotation was submitted and the order confirmation was issued or the items become necessary owing to later requests by the Customer.
- In the event of default of payment, Scheugenpflug AG is entitled, pursuant to Section 288 (2) BGB, to charge default interest in the amount of 9% p.a. above the basic interest rate without being required to issue a prior dunning notice.
- The Customer may set off counterclaims against the claims of Scheugenpflug AG only if and when the counterclaims are undisputed or have been finally adjudicated by a court of law.
IV. Delivery Time and Default
- The delivery time is determined in the agreements between the parties. Partial deliveries are permitted, provided that they are reasonable for the Customer.
- Compliance with an agreed delivery date is contingent on the timely receipt of any and all documentation to be provided by the Customer, required permits and releases and compliance with the agreed terms and conditions of payment. If and when these prerequisites have not been fulfilled in due time, the delivery period will be extended accordingly.
- Later requests from the Customer for modification of or additions to the product/service will also result in a postponement of the dates or extension of the delivery periods for the duration of the resulting delay.
- The point in time of the handover to the forwarding agent, freight carrier or other third parties engaged for the transport is decisive for determining compliance with the delivery period. If and when the handover is not possible due to reasons for which Scheugenpflug AG is not accountable, the notification of readiness for shipping suffices.
- If and when the failure to comply with the agreed delivery date or period is a consequence of force majeure or other incidents that cannot be influenced by Scheugenpflug AG, the delivery period will be extended by the duration of the hindrance.
- If and when Scheugenpflug AG is in default, the Customer may — provided that it can credibly demonstrate that it has suffered loss or damage as a consequence — request compensation for each full week of default in the amount of 0.5% per week; in the aggregate, however, the compensation may not exceed 5% of the net price of the delayed deliveries.
Customer’s damage compensation claims based on default of delivery as well as damage compensation claims in lieu of performance that are in excess of the aforementioned limits are excluded in all cases of delayed performance, even after the expiration of any deadline for performance that has been set for Scheugenpflug AG. The above provision does not apply to cases of wilful intent, gross negligence, fraudulent intent or injury to life, body or health to the extent that liability is mandatory. The Customer may rescind the contract within the scope of statutory provisions solely if and when Scheugenpflug AG is accountable for the default of delivery. The above provisions do not entail a reversal of the burden of proof to the disadvantage of the Customer.
- If and when the Customer is in default of acceptance or is in culpable breach of other cooperation obligations, Scheugenpflug AG is entitled to request compensation for any and all loss or damage that is consequently suffered, including any additional expenses.
V. Retention of Title
- Scheugenpflug AG retains title of ownership to any and all products until all of the claims arising from the business relationship to which it is entitled have been satisfied.
- During the period of retention of title, the Customer is entitled solely to resell the delivered products (reserved goods) within the scope of orderly conduct of business. In the event of their sale, the Customer assigns to Scheugenpflug AG here and now any and all claims against its customers or third parties to which it is entitled from the resale. The assignment is not dependent on any further separate declaration. The assignment covers any balance claims as well. The assignment is limited, however, to the amount corresponding to the price of the products invoiced by Scheugenpflug AG. The satisfaction of the part of the claim assigned to Scheugenpflug AG shall take priority. The Customer is authorised to collect the claim assigned to Scheugenpflug AG in accordance with this section. The Customer will immediately forward payments received toward the assigned claims to Scheugenpflug AG until the amount of the secured claims has been reached. If and when there are legal interests — particularly, but not limited to, default of payment, suspension of payment, initiation of bankruptcy proceedings, bill protest or legitimate indications of the Customer’s over indebtedness or imminent insolvency — Scheugenpflug AG is entitled to revoke the Customer’s authorisation to collect. Furthermore, Scheugenpflug AG may, following prior notice and observance of a reasonable period, disclose the assignment by way of security, recover the assigned claims and disclose to the customers the Customer’s assignment by way of security. If legitimate interests have been credibly demonstrated, the Customer shall provide to Scheugenpflug AG the information required to assert the latter’s rights against the customers and shall hand over the required documentation.
- Any processing or conversion of the products is carried out at all times on behalf of Scheugenpflug AG. In the event of processing, combination, mixing or augmentation of the reserved goods with other products, Scheugenpflug AG is entitled to co-ownership of the new product in the ratio of the invoice value of the reserved goods to that of the other products at the point in time of the processing, combination, mixing or augmentation. Should Scheugenpflug AG not acquire ownership of the new product pursuant to the above provision, Scheugenpflug AG and the Customer agree that the Customer will grant to Scheugenpflug AG co-ownership of the new product in the ratio of the value (gross invoice value) of the products belonging to Scheugenpflug AG to that of the other processed products at the point in time of the processing. The above sentence applies mutatis mutandis in the event of the inseparable mixing or combining of the supplied product with products that do not belong to Scheugenpflug AG. If and when Scheugenpflug AG acquires ownership or coownership pursuant to this section, the Customer will safeguard the product on behalf of Scheugenpflug AG with the care of a prudent merchant.
- Scheugenpflug AG shall be notified in writing immediately in the event of attachments, confiscations or other third-party disposals or interventions.
VI. Passing of Risk and Acceptance
- Unless otherwise agreed, the handover of the product is “ex works”.
- The risk of accidental loss or accidental worsening passes to the Customer upon the handover of the product to a forwarding agent, freight carrier or other third party engaged for the shipping of the product. The above provision also applies if and when the performance of additional services such as installation and restart have been assumed.
- Transport insurance will be obtained solely at the Customer’s express request and its expense.
- To the extent that the prerequisites of IV. No. 7 have been met, the risk of accidental loss or accidental worsening of the product passes to the Customer at the point in time at which Scheugenpflug AG has notified the Customer of the readiness for shipping. The Customer shall bear any storage costs incurred after the passing of risk.
- If and when acceptance is owed pursuant to contractual or statutory provisions, it will be carried out in agreement with the Customer on the agreed date at the Scheugenpflug AG works. Alternately, Scheugenpflug AG is entitled to notify the Customer of the readiness for acceptance and to request its acceptance within a reasonable period that has been set. If and when the Customer does not respond within this period, the acceptance will be carried out in the Customer’s absence and an internal acceptance record will be prepared. If and when the Customer does not, within a period of 10 business days, submit written object to the acceptance record that has been sent to it, any objections to the acceptance record are excluded. If and when the Customer requests a second acceptance in its presence, the Customer shall bear any and all costs incurred by the acceptance. A complete startup of the product by the Customer is the equivalent of an acceptance. The warranty period begins to run and liability for visible defects lapses at this point in time unless the Customer has reserved the right to assert a defect that is known to it.
- The components which are produced with the machine or system before the acceptance (e. g., for test purposes) may only be reused at Customer’s own risk.
VII. Liability for Defects (Material Defects)
- Scheugenpflug AG will, at its discretion, perform subsequent improvement or renewed delivery of any and all parts that prove to be defective during the warranty period of one year after delivery as a consequence of circumstances occurring before the passing of risk.
- Scheugenpflug AG’s warranty obligation does not extend to used products. Such products are always sold subject to the exclusion of any warranty.
- Pursuant to Section 377 HBG [German Commercial Code], the Customer shall notify Scheugenpflug AG in writing immediately of any material defects.
- The Customer shall provide to Scheugenpflug AG the opportunity to undertake any and all subsequent improvement actions or replacement part deliveries that appear necessary within a reasonable period; otherwise, Scheugenpflug AG will be released from liability for any resulting consequences.
- Scheugenpflug AG will bear the expenses incurred by the subsequent performance. If and when the Customer moves the product to a location different from the contractually agreed installation site, the Customer will bear any and all additional travel expenses Scheugenpflug AG incurs.
- Warranty claims for damage or loss arising from the following after the passing of risk are expressly excluded:
a) Unsuitable or improper use
b) Incorrect or negligent handling
c) Improper maintenance
d) Excessive use
e) Unsuitable operating materials
f) Faulty construction work
g) Unsuitable building site
h) Chemical, electrochemical or electrical or other influencing factors that were not presumed by the contract
i) Software errors that cannot be reproduced
- If the Customer or third parties undertake improper modifications or repair work, there are also no claims due to defects for these and the resulting consequences. The above provision applies equally if replacement parts have been installed that are not our original replacement parts or are not replacement parts that we have recommended in writing. The warranty does not cover normal wear and tear, especially, but not limited to, wear and tear parts and wetted parts.
VIII. Industrial Property Rights and Copyrights; Legal Defects
- Unless otherwise agreed, Scheugenpflug AG is obligated to perform delivery free of any third-party industrial property rights and copyrights (collectively: intellectual property rights) solely in the country of the destination. If and when a third party asserts claims against the Customer based on the infringement of intellectual property rights by the use in accordance with the contract of products supplied by Scheugenpflug AG, Scheugenpflug AG is liable within the period defined in Art. VIII No. 1 as follows.
Scheugenpflug AG will, at its discretion and at its expense, either obtain a utilisation right for the delivered product or modify the product so that there is no infringement of the intellectual property right or replace the product. If this is not possible under circumstances that are reasonable for Scheugenpflug AG, the Customer is entitled to exercise statutory rescission rights or the right to reduce the price.
- Scheugenpflug AG reserves its unlimited utilisation rights of ownership and copyright to any and all documentation related to the quotation such as cost estimates, pictures, drawings and other documents. No such materials may be disclosed to third parties without prior, express written consent and must, upon request, be returned to Scheugenpflug AG. The above provision applies mutatis mutandis to the Customer’s documentation; however, it may be disclosed to third parties who Scheugenpflug AG has legally engaged for deliveries.
- Unless otherwise agreed, the Customer is granted a non-exclusive right to use the received software, including its documentation. The Customer may replicate, amend or translate the software or convert the object code into source code only within the legally permissible scope (Sections 69a et seqq. UrhG [German Copyright Act]). The Customer covenants not to remove or, without the express prior consent of Scheugenpflug AG, to modify manufacturer’s information. Any and all other rights to the software and its documentation, including the right to copies, remain with Scheugenpflug AG or the software supplier.
- Scheugenpflug AG is liable for loss or damage which does not occur to the product itself (whatever the legal grounds) solely if and when statutory liability is mandatory:
a) For wilful intent or gross negligence of officers and directors or vicarious agents
b) For culpable injury to life, body, health
c) For culpable breach of essential contractual obligations
d) For fraudulent concealment of defects
e) For liability mandated by the Product Liability Act
- Any damage compensation claims for the culpable breach of essential contractual obligations is limited, however, to the foreseeable loss or damage typical of the contract. In particular, indirect loss or damage or consequential damage or loss that is the consequence of defects in the product is subject to compensation solely to the extent that such loss or damage can typically be expected when the product is used in accordance with its intended purpose.
X. Export Control
- Scheugenpflug AG will notify the Customer if and when the supply of the product(s) may be restricted or prohibited by embargos, customs regulations, EU/US or government sanction lists or provisions for control of exports, transfers, trade or the transit of dual-use goods.
- The Customer covenants to obtain on its own initiative information about relevant export regulations before the export of goods (separately or integrated into a system) and to comply with applicable export control laws. Furthermore, it covenants to obligate any and all downstream recipients of the related goods to act in the same way.
- The Customer shall obtain any and all required export licences or other documents at its own expense. Express note is made at this time that Scheugenpflug AG is not obligated to issue a separate or longterm supplier declaration or to obtain such a declaration from its own upstream suppliers.
- The Customer is not entitled to return products or to request damage compensation if an export permit is refused.
XI. Data Protection
- The Customer covenants to maintain comprehensive confidentiality regarding any and all business and operating secrets, product knowhow and company-specific technical knowledge of Scheugenpflug AG that become known to it within the scope of the business relationship (regardless of the manner in which it acquires this knowledge). Solely knowledge that is in the public domain is exempt from this obligation.
- Scheugenpflug AG is entitled to store and process electronically any and all data concerning the Customer that are related to the business relationship for the purposes of orderly fulfilment of the contract while strictly observing the requirements of the German Federal Data Protection Act.
- Objection to Scheugenpflug AG’s utilisation of these data may be submitted in informal written form at any time.
XII. Place of Performance, Proper Law and Venue
- The legal relationship between Scheugenpflug AG and the Customer is governed solely and exclusively by German law, excluding application of the United Nations Convention on the International Sale of Goods (CISG).
- If individual provisions of these Terms and Conditions of Sale should be invalid, the validity of the contractual relationship as a whole shall not be affected. The invalid provision will be replaced by the statutory provision.
- If the Customer is a general merchant within the sense of HGB, the sole venue for any and all indirect and direct disputes arising from the underlying contractual relationship is, at the discretion of Scheugenpflug AG, at the venue of the court competent for Scheugenpflug AG. Scheugenpflug AG is entitled, however, to file suit against the Customer at any other permissible venue.
As amended on 01/01/2017 – Valid as of 01/01/2017