General Terms and Conditions of Sale of SCHNEIDER GmbH & Co. KG (hereinafter referred to as “SCHNEIDER”)

1. General – Scope of Application

1.1 SCHNEIDERS general terms and conditions of sale, as amended, shall apply to all current and future orders placed by the domestic or foreign customer with SCHNEIDER or with companies affiliated to SCHNEIDER as defined by §§ 14 ff. Companies Act (AktG), unless SCHNEIDER has expressly and in writing acknowledged deviations from such terms and conditions. Collateral agreements and subsequent amendments shall only be binding on SCHNEIDER if they have been confirmed in writing. This shall also apply to a rescission of the clause stipulating the written form. Acceptance of deliveries and services by the customer shall be held to be an acknowledgement of SCHNEIDERS terms and conditions of sale.

1.2 Any purchasing conditions on the part of the customer shall only be binding on SCHNEIDER if expressly acknowledged by SCHNEIDER in writing. The same shall apply to any other General Terms and Conditions of the customer.

2. Quotations – Quotation Documents

2.1 Unless otherwise laid down in the offers made by SCHNEIDER, SCHNEIDER shall be bound by its offers for a period of six weeks.
 
2.2 SCHNEIDER shall be entitled to accept orders placed by the customer within a period of six weeks. The customer shall be bound by its order for the duration of this period.

2.3 In individual cases, SCHNEIDER shall be entitled to clarify orders within a longer period of time, provided it has previously notified the customer in writing of the situation. Such clarification of orders should not take longer than three months.

2.4 SCHNEIDER reserves all property rights and copyrights in all illustrations, drawings, calculations and other documents. This shall also apply to written documents referred to as “confidential”. The customer requires SCHNEIDERS prior express written consent in order to pass on such documents to third parties. The customer has to return these documents to SCHNEIDER at SCHNEIDERS request.

2.5  Unless expressly agreed otherwise, details in the form of texts or images published by SCHNEIDER in catalogues, brochures and other publications (e.g., descriptions, illustrations or drawings) identify in a final manner the characteristics of the goods delivered by SCHNEIDER and their possible use. The information given in this respect constitutes approximate values usual in the industry unless it has expressly been described as binding in the order confirmation. Other manufacturer’s information shall not be binding. Documents containing final details shall be made available to a reasonable extent after the contract has been concluded, provided this is required within the scope of the business relationship. SCHNEIDER reserves the right to alter the technical concept on which the offer is based, provided that performance and quality of the delivery item offered are not impaired by such alteration.

3. Scope of Performance

3.1 The delivery commitment includes the items of delivery and performance confirmed by SCHNEIDER in writing. If the delivery item is to serve special customer purposes, such special purposes and the requirements that the delivery item has to meet accordingly have to be expressly and completely described by the customer in the order and have to be confirmed by SCHNEIDER.

3.2 In the event of CIF deliveries, charges levied in the port of destination for unloading, lighterage and landing, port and quay dues are not included in the price.

3.3 Customs, consular fees and other taxes, duties, fees and other costs connected with them that are levied outside the Federal Republic of Germany, shall be borne by the customer. In the event the delivery is agreed to include customs or other duties, the price given is based on the rates applicable at the point in time when the offer is made. In accordance with the Incoterms rules, the costs charged shall be either those offered or the actual costs. Any applicable turnover tax shall be charged additionally.

3.4 SCHNEIDER shall only be obliged to adhere to foreign packing, weighing instructions and customs regulations, if the customer has furnished the pertinent detailed information and data to SCHNEIDER in good time. The additional costs incurred by this shall be borne by the customer.

4. Prices

4.1 Unless expressly otherwise specified, all prices shall be net prices excluding value added tax, which has to be paid by the costumer at the respective statutory rate additionally, and the prices shall apply Ex respective SCHNEIDER production plant, including loading at the production plant, however, excluding packing, transport and unloading. Unless otherwise specified, the prices are quoted in EUR.

4.2 SCHNEIDER reserves the right to adapt prices if there is a change in the elements on which SCHNEIDERS calculation is based.

4.3 Discount agreements have to be made in writing.

4.4 Any discounts granted shall be cancelled in the event of a delay in payment by the customer, institution of insolvency proceedings against the assets of the ordering party or rejection of such opening for lack of assets.

5.  Terms of Payment

5.1 Payments have to be effected in the currency accounted in the invoice and have to be made free of postage and free of expense. They may only be made to the paying agents specified by SCHNEIDER. Bills of exchange and cheques shall be considered as payment only after redemption/cashing and will be accepted without obligation for timely representation and protesting.

5.2 Unless expressly otherwise agreed, payments have to be made without deductions within 14 days as of the date of the invoice. When terms of payment are exceeded, SCHNEIDER shall be entitled to demand interest amounting to 8 percentage points above the basis interest rate (§ 247 BGB [German Civil Code]) p.a.

5.3 Any offsetting by the customer against counterclaims shall only be permitted if these counterclaims are uncontested or have become res judicata. The maximum amount that the customer may retain as a result of defects shall be three times the amount of the expense for subsequent performance. If the customer exercises its right of retention, the customer shall be obliged, at SCHNEIDERS discretion, to provide security amounting to the unpaid partial amount either by bank guarantee or by depositing such amount with a notary of its choice.

5.4 If payment is not made in due time SCHNEIDER shall be entitled to:

5.4.1 Assert all claims against the customer arising from the respective or other transactions immediately, even those which have not yet become due;

5.4.2 withhold supplies or other performance arising from the respective or other orders until all claims of SCHNEIDER still outstanding from the respective or other orders have been satisfied in full by the customer;

5.4.3 Demand appropriate security;

5.4.4 Reclaim the goods which are still subject to the reservation of title. If, due to lapse of time, the goods are no longer utilizable or no longer utilizable without restrictions, SCHNEIDER shall be entitled to demand value equalization in money (Wertausgleich).

5.5 If, after closing of the contract, SCHNEIDER obtains knowledge of facts evidencing a considerable deterioration of of the customer’s financial condition and circumstances, which in duty-bound commercial discretion are suitable endanger SCHNEIDERS claim for counter performance (including, in particular, a petition to open insolvency proceedings), SCHNEIDER shall up to the time of its performance be entitled to demand provision of suitable security within a reasonable period or performance upon counter performance. If the customer does not comply with such justified request in due time, SCHNEIDER may withdraw from the contract or claim damages. In this situation, SCHNEIDER shall be entitled to render all amounts immediately due, also amounts possibly granted indulgence for. 

6. Delivery Times, Delay, Force Majeur

6.1 Delivery times shall only be binding if confirmed by SCHNEIDER in writing.

6.2 Observance of the delivery time shall be subject to a complete clarification of the order and of all technical and commercial issues, grant of all permits and timely receipt by SCHNEIDER of all documents, payments and securities to be provided by the customer. This shall not apply if SCHNEIDER is responsible for the delay. In the event that not all conditions mentioned have been met in time, the delivery time shall be extended by a reasonable period. The delivery time shall be considered observed when, until expiry of the delivery time, the item has left SCHNEIDERS plant or warehouse or when the customer has been notified of readiness for dispatch, when the goods cannot be shipped in time without any fault on the part of SCHNEIDER.

6.3 Unforeseeable, exceptional events for which SCHNEIDER cannot be held responsible, e.g., industrial disputes, operational breakdowns, measures taken by the authorities, interference with transportation or other events of Force Majeure, regardless of whether these events occur at SCHNEIDER or at one of its suppliers, shall discharge SCHNEIDER from its obligations arising from the contract; if the obstacles are of a temporary nature, however, SCHNEIDER shall only be discharged for the duration of the hindrance plus a reasonable starting period. SCHNEIDER will notify the ordering party as early as possible of commencement and termination of such events. If, as a result of such events, later delivery becomes impossible or unreasonable for one of the parties, both parties shall be entitled to withdraw from the contract.

6.4 The customer shall not be entitled to demand a contractual penalty unless such contractual penalty had been agreed on separately. SCHNEIDER shall not be liable for damage caused by delay resulting from a slightly negligent breach of duty unless such breach of duty results in injury to life, limb or health. The above regulations shall not shift the burden of proof to the prejudice of the customer.

6.5 The customer shall bear any additional costs resulting from an interruption of or a delay in the work to be performed by SCHNEIDER, for which interruption or delay the customer is responsible. The same shall apply in the event that the customer is in default of acceptance.

6.6 If dispatch is delayed for reasons for which SCHNEIDER cannot be held responsible, SCHNEIDER shall be entitled to store the delivery item at the risk of the customer and request reimbursement of costs incurred hereby. SCHNEIDER shall be entitled to contract an insurance against storage risks for the account of the customer.

6.7 If the customer is responsible for providing the means of transport for delivery and if the customer fails to do this within the time scheduled for this in the contract, SCHNEIDER shall be discharged from the obligation to deliver through storing and insuring the delivery items at the expense and risk of the customer. The forwarder’s receipt shall be considered sufficient evidence for delivery in accordance with the contract.

7. Passing of Risk, Insurance

7.1 Unless otherwise specified in the order confirmation, delivery “Ex Works” is considered agreed. Upon staging the item for dispatch, the risk of accidental deterioration or accidental loss shall pass to the customer.

7.2 On the request of the customer, SCHNEIDER will cover the delivery by a transport insurance; the costs incurred thereby shall be borne by the customer.

8. Liability for Defects

8.1 SCHNEIDER warrants that at the point in time when the risk is passed the delivery item is in the agreed condition. However, SCHNEIDER shall only be liable for any defects if the operational conditions and terms of guarantee specified by SCHNEIDER have been complied with. These terms and conditions provide for the following, however, without being limited to them: the requirements placed on the operation of the delivery item, which requirements are defined in the service manuals, operating instructions and product descriptions, have to be met; the delivery item has to be exclusively operated by trained operators and engineers; the machine specific environmental conditions defined by SCHNEIDER and applicable to the machines have to be strictly adhered to; the delivery item has to undergo strict and regular maintenance by trained personnel according to the SCHNEIDER instructions written in  the manual; all worn and defect parts have to be replaced immediately; the delivery item has to be protected against viruses and unauthorized access by third parties. System failures and chrashes are not under warranty unless caused by failures of the machine or its components. In the sector of ophthalmics, SCHNEIDER shall only and exclusively be liable for defects if the customer exclusively uses the tools and consumables provided or released by SCHNEIDER, if costumer furnishes correct specifications of data for workpiece, workpiece reception, tool dimensions and the process parameters and if the tools are changed according to SCHNEIDERS utilization guidelines.

8.2 The prerequisite for claims of the customer based on defects is that the customer duly meets its requirements to examine the delivery item and make a complaint in respect of a defect immediately on receipt of the item in accordance with § 377 HGB [Commercial Code].

8.3 In the event of a justified notice of defects, the customer shall first only have a claim to subsequent performance, which claim, at SCHNEIDERS discretion, can be met through delivery (“Nacherfüllung”) (against return of the rejected item) or through removal of the defect (“Nachbesserung”). In the event that subsequent performance failed or is unreasonable for the customer (§ 440 BGB) or unnecessary because

8.3.1 SCHNEIDER finally refuses subsequent performance,

8.3.2 SCHNEIDER fails to effect subsequent performance by a deadline laid down in the contract or within a certain period, and, in the contract, the customer had made continuation of its interest in the performance conditional upon timely performance, or

8.3.3 special circumstances prevail justifying an immediate withdrawal on weighing mutual interests (§ 323 par. 2 BGB [German Civil Code]), the customer, at its discretion, shall immediately be entitled to reduce the purchase price or withdraw from the contract and, instead of performance, claim damages or reimbursement of expenses incurred in vain in accordance with art. 8.

8.4 The customer has to grant SCHNEIDER the time and opportunity reasonably required for removal of defects. If the customer refuses this, SCHNEIDER shall be discharged from the duty to remove defects.

9. Liability for Damages

9.1  SCHNEIDER shall be liable in accordance with the statutory provisions for damages resulting from culpable injury to life, limb or health.

9.2 In other respects, SCHNEIDERS liability due to breach of duty and its non-contractual liability shall be limited to intent and gross negligence. In this context, any liability for gross negligence on the part of SCHNEIDERS employees, members of staff and simple vicarious agents (“Erfüllungsgehilfen”) shall be excluded.

9.3 The limitation on liability or the exclusion of liability in accordance with art. 9.2 shall not apply in the event of breach of such contractual duties which make the due performance of the contract possible in the first place and on adherence to which the customer may rely (so-called cardinal duties or duties essential to the contract [“Kardinalpflichten”]).

9.4 Liability shall be limited to the damage typical for this type of contract, the occurrence of which damage SCHNEIDER had to expect when the contract was concluded based on  the circumstances known to SCHNEIDER at that point in time.

9.5 Any further liability shall be excluded regardless of its cause in law. In particular, SCHNEIDER shall not be liable for lack of economic success, lost profit, indirect damage, consequential harm caused by a defect and damage as a result of third party claims.

9.6 The above-mentioned limitations on liability shall apply likewise to claims for reimbursement of expenses incurred in vain (§ 284 BGB [German Civil Code]).

9.7 The above regulations shall not shift the burden of proof to the prejudice of the customer.

9.8 This shall be without prejudice to claims for damages in accordance with the Product Liability Act (“Produkthaftungsgesetz”).

10.  Limitation of Action

All claims of the customer – regardless for whatever causes in law – shall become statute-barred after 12 months. The statutory limitation periods shall apply to claims for damages in accordance with art. 9.1.

11. Inspection and Acceptance

11.1 Inspections in the presence of the customer or its representative and special inspections are subject to prior agreement; SCHNEIDER shall be entitled to invoice the customer for the inspection costs.

11.2  If the delivery item is to undergo an acceptance test, such test, as a rule, has to be performed on SCHNEIDERS manufacturing premises. Subject to SCHNEIDERS written consent, acceptance can in individual cases take place on the customer’s premises. Acceptance shall be considered effected if the customer has not asserted justified objections by the time the acceptance test is completed.

11.3 If the customer waives an agreed acceptance test or if the customer is not present during the test despite having been notified of it in time, the test performed by SCHNEIDER shall be considered as acceptance.

11.4  If the tests are delayed for reasons for which SCHNEIDER cannot be held responsible, any additional costs thereby incurred shall be borne by the customer.

12. Reservation of Title (“Eigentumsvorbehalt”)

12.1 All goods delivered shall remain property of SCHNEIDER until the remuneration owed, including all ancillary claims, has been paid in full. When bills of exchange or cheques are accepted, payment shall only be considered effected after their final redemption/cashing. The ancillary claims include in particular costs for packing, freight, insurance, bank charges, reminder charges, lawyer’s charges, court fees and other costs.

12.2 For a current account, the reservation of title serves as security for SCHNEIDERS balance claim. Goods already paid for shall remain SCHNEIDERS property as long as SCHNEIDER has any claims against the customer.

12.3 The customer shall take the conditional goods into customary custody on behalf of SCHNEIDER. The customer is obliged to store separately and mark the goods that are SCHNEIDERS property. SCHNEIDER shall be entitled to check at short notice whether the goods are stored separately and marked. If a petition for institution of insolvency proceedings against the assets of the customer has been made, SCHNEIDER itself shall be entitled to immediately mark the conditional goods as SCHNEIDERS property and/or to repossess it. The customer shall be liable for loss of goods that are SCHNEIDERS property. The customer shall be obliged to insure the goods at its cost for the benefit of SCHNEIDER against all risks, in particular against fire, water and theft. The insurance claims are hereby assigned in advance to SCHNEIDER. SCHNEIDER is to be notified immediately of any damage which has occurred. If the customer fails to furnish proof of having contracted insurance, SCHNEIDER itself shall be entitled to insure at the expense of the customer the delivery item against the above-mentioned risks.

12.4 Handling and processing of the conditional goods shall be performed on behalf of SCHNEIDER as manufacturer as defined by § 950 BGB (German Civil Code), without binding SCHNEIDER. Processed goods shall be considered as conditional goods as defined by art. 12.1. When conditional goods are processed together with, connected to and mixed with other goods by the customer, SCHNEIDER shall be entitled to co-ownership of the new item in proportion of the invoice value of the conditional goods to the invoice value of the other goods used. If SCHNEIDERS ownership expires as a result of the goods having been connected or mixed, the customer shall assign as early as now to SCHNEIDER the title to the new stock or item in the scope of the invoice value of the conditional goods and shall store them for SCHNEIDER free of charge. The co-ownership rights incurred hereby shall be considered as conditional goods as defined by art. 12.1.

12.5 The customer shall be entitled to resell, process or connect with other items or otherwise install the conditional goods (hereinafter also referred to in brief as “resale”) only in the ordinary course of business and as long as the customer is not in default. Any other disposal of the conditional goods is not permitted. SCHNEIDER is to be notified immediately in the event of a third party attachment or other access to the conditional goods. All intervention costs, e.g., costs of an action in opposition to execution of a judgment, brought by a third party who claims title to the attached property in accordance with § 771 ZPO (Code of Civil Procedure) shall be borne by the customer in so far as such costs cannot be collected at first request from the third party (opponent in the action) and the intervention has been justified. If the customer grants its buyer a delay in payment, the customer must reserve title to the conditional goods vis-à-vis such buyer on the same conditions on which SCHNEIDER reserved title to the delivery of the conditional goods; the customer, however, shall not be obliged to reserve title with regard to claims against its buyer that will only arise in the future. Otherwise the customer shall not be entitled to resell the goods.

12.6 The customer’s claims from reselling the conditional goods are herewith assigned in advance to SCHNEIDER. They shall serve as security to the same extent as the conditional goods. The customer shall only be entitled and authorized to resell the goods if it is ensured that the customer’s claims arising from this pass to SCHNEIDER.

12.7 If the customer sells the conditional goods at a total price together with other goods that were not delivered by SCHNEIDER, the assignment of the claim arising from the sale shall amount to the invoice value of SCHNEIDERS conditional goods sold in each case.

12.8 If the assigned claim is included in a current account, the customer assigns herewith to SCHNEIDER as early as now that part of the balance (including the final balance arising from the current account) corresponding in its amount to this claim.

12.9 Until revoked by SCHNEIDER, the customer shall be entitled to collect the claims assigned to SCHNEIDER. SCHNEIDER shall be entitled to revocation if the customer does not duly meet its payment obligations arising from the business connection with SCHNEIDER, or if SCHNEIDER obtains knowledge of circumstances evidencing a significant worsening of the customer’s creditworthiness. If the conditions for exercise of the right to revocation have been met, at SCHNEIDERS request, the customer has to immediately communicate the assigned claims and their debtor, provide all information required for collecting the claims, submit the pertinent documents to us and notify the debtor of the assignment. SCHNEIDER itself shall also be entitled to notify the debtor of the assignment.

12.10 If the nominal value (invoice amount for the goods or nominal amount of the claims) of the security existing for the benefit of SCHNEIDER exceeds the secured claims by all together more than 20%, at the customer’s request, SCHNEIDER shall be obliged to release securities at SCHNEIDERS discretion.

12.11 In the event that SCHNEIDER asserts reservation to title, this shall only be considered as a withdrawal from the contract if SCHNEIDER expressly says so in writing. The right of the customer to own the conditional goods shall expire if the customer does not meet its obligations arising from this or from another contract.

13. Industrial Property Rights

13.1 Unless otherwise agreed, SCHNEIDER shall only be obliged to effect delivery free of industrial property rights and third party copyrights (hereinafter property rights) in the country of the place of delivery. If a third party asserts justified claims against the customer based on the infringement of property rights by deliveries effected by SCHNEIDER and used by the customer in accordance with the contract, provided that the period stipulated in art. 10 has not yet expired, SCHNEIDER shall either

13.1.1  procure for the customer the right to use the delivery item, or

13.1.2  arrange the delivery item such that it does not infringe any property rights, or

13.1.3  replace the delivery item by another item of corresponding efficiency, which item does not infringe any property rights, or

13.1.4  take back the delivery item against repayment of the purchase price taking into account a reasonable deduction for the use that has occurred in the meantime.
 
13.2 The above-mentioned obligations of the supplier shall exist only to the extent that the customer immediately notifies SCHNEIDER in writing of claims asserted by the third party, that it does not acknowledge an infringement and that the right to all defence measures and composition negotiations shall be reserved for SCHNEIDER. In the event that the customer stops using the delivery item for reasons of limiting the damage or for other important reasons, the customer shall be obliged to point out to the third party that stopping the use does not constitute an acknowledgment of property right infringement.

13.3  Any claims of the customer shall be excluded if the customer is responsible for the infringement of property rights. This shall apply in particular, however, without being limited to it, if and to the extent that third party property rights are infringed by a delivery item that has been manufactured based on special specifications, drawings, developments or other details supplied by the customer, or if the customer has made changes to the delivery item, installed additional facilities or has connected the delivery item with other equipment or devices and thus infringes third party property rights. Moreover, in such cases the customer has to indemnify SCHNEIDER against third party claims.

13.4 As a result of the infringement of third party property rights the customer shall have no further or other claims. In this respect art. 9 shall apply.

13.5 The customer shall not acquire any claims to exercise property rights that are at SCHNEIDERS disposal and refer to the combination of the delivery item with other items.

14.  Software

14.1 The customer shall acquire from SCHNEIDER only the right to use the installed software to the extent that this is necessary for using the delivery item. Such right of use shall not be exclusive and shall be limited to the delivery item.

14.2 The customer shall be entitled to transfer to this extent the right of use to subsequent owners or hirers of the delivery item.

14.3  Schneider shall reserve all property rights to the software, which rights shall also apply to the case that this software was developed especially for the customer.

14.4 Unless otherwise agreed in writing, SCHNEIDER shall not be obliged to make updated versions of the installed software available to the client.

15.  Rescission (“Rücktritt”)

15.1 SCHNEIDER shall be entitled to withdraw from the contract if performance of the contract becomes impossible for reasons for which SCHNEIDER cannot be held responsible. Moreover, SCHNEIDER shall be entitled to withdraw from the contract if events, which could not have been foreseen when the contract was concluded, at a later date change the contractual conditions to such a high degree that SCHNEIDER cannot be expected to abide by the contract.

15.2 In the cases mentioned above SCHNEIDER shall be entitled to demand reimbursement of all necessary expenses incurred for the order, unless parts produced for the order can otherwise be used in an equivalent manner within a reasonable period of time.

16. Venue, Place of Performance, Concluding Provisions

16.1 Place of performance for all mutual obligations shall be the seat of SCHNEIDER GmbH & Co. KG.

16.2 Exclusive venue for all disputes arising from the business relations shall be the seat of SCHNEIDER GmbH & Co KG in accordance with commercial register law if the customer is a merchant or an entity under public law as defined by § 29 a) par. 2 ZPO (Code of Civil Procedure). However, SCHNEIDER shall also be entitled to bring an action against the customer at its own statutory venue.

16.3 SCHNEIDER shall be entitled to process data of the customer that refer to the business relationship between SCHNEIDER and the customer in the manner defined by the Federal Data Protection Act.

16.4 The relationship between SCHNEIDER and the customer shall be subject to German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the rules laid down by private international law. If the English legal meaning differs from the German legal meaning of this agreement and its terms, the German meaning shall prevail.

16.5 Should individual provisions be ineffective or unenforceable or lose their effectiveness as a result of circumstances occurring at a later date, this shall not affect the effectiveness of the remaining provisions. An ineffective or unenforceable provision has to be considered as replaced by such effective provision which is as close as possible to the economic purpose pursued by the parties. The same shall apply to gaps in the contract.