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T&C Purchase

General Terms and Conditions of Purchase
Group Schumacher worldwide
SMF Holding GmbH – Schumacher GmbH – Rasspe Systemtechnik GmbH

Schumacher GmbH, Siegener Straße 10, 57612 Eichelhardt / Germany

1. Scope, Form

1.1. These General Terms and Conditions of Purchase (GTP) apply to all business relations with our business partners and suppliers (“Seller”). The GTP shall only apply if the Seller is an entrepreneur (§ 14 of the German Civil Code), a legal entity under public law or a special fund under public law.
1.2. The GTP apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (§§ 433, 650 of the German Civil Code). Unless otherwise agreed, the version of the GTP valid at the time of the Buyer's order or in any case the version most recently communicated to it in text form shall also apply as a framework agreement for similar future contracts, without our having to refer to them again in each individual case.
1.3. These GTP shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Purchase of the Seller shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This consent requirement shall apply in any case, for example even if we accept the Seller's deliveries without reservation in the knowledge of the Seller's General Terms and Conditions.
1.4. Individual agreements made with the Seller in individual cases (including side agreements, addenda and amendments) shall in any case prevail over these GTP.
1.5. References to the validity of statutory provisions only have a clarificatory meaning. Even without such a clarification, the statutory provisions shall therefore apply, where they are not directly amended or expressly excluded in these GTP.

2. Formation of contracts

2.1. Our order shall be deemed binding at the earliest upon written submission or confirmation. The Seller shall notify us of obvious errors (e.g. typing and calculation errors) and incompleteness of the order, including the order documents for the purpose of correction or completion prior to acceptance; otherwise the contract shall be deemed not concluded.
2.2. The Seller shall confirm our order in writing within a period of five (5) working days. A delayed acceptance shall be deemed a new offer and requires our acceptance.

3. Delivery time and delivery delay

3.1. Our stated delivery time in the order is binding. The Seller shall immediately notify us in writing in the event of a likely failure on its part to meet agreed delivery times – for whatever reason.
3.2. If the Seller fails to render its performance or does so outside the agreed delivery period or if it is in default, our rights – in particular the right of withdrawal and the right to compensation – shall be governed by statutory provisions. The provisions of clause 3.3 shall remain unaffected.
3.3. If the Seller is in default, we may - in addition to further statutory claims – claim fixed compensation for our default-related losses of 1% of the net price per completed calendar week, but not more than a total of 5% of the net price of the goods delivered late. We reserve the right to prove the incurrence of greater losses. The Seller reserves the right to prove the absence of any losses at all or the incurrence of only considerably lower losses.

4. Performance, Delivery, Transfer of risk, Default of acceptance

4.1. Without our prior written consent, the Seller may not cause the performance it owes to be rendered by third parties (e.g. subcontractors). The Seller bears the procurement risk for its services, unless otherwise agreed in individual cases (e.g. limitation to stock).
4.2. Delivery shall be “free domicile” within Germany to the place specified in the order. Where the place of destination is not specified and nothing to the contrary has been agreed, delivery shall be made to our registered office in Eichelhardt. The respective place of destination is also the place of performance for the delivery and any subsequent performance (obligation to be fulfilled).
4.3. The delivery shall be accompanied by a delivery note indicating the date (issue and dispatch), the contents of the delivery (article number and quantity) and our order identification (date and number). We will not be liable for any resulting delays in processing and payment if the delivery note is missing or incomplete.
4.4. The risk of accidental loss and accidental deterioration of the goods shall pass to us upon handover at the place of performance. Where acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly in the event of acceptance. If we are in default of acceptance, this shall be equivalent to handover or acceptance.
4.5. Statutory provisions shall apply in the event of default of acceptance on our part. However, the Seller shall also expressly offer us its performance if a specific or determinable calendar period has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the Seller may demand compensation for its additional expenses in accordance with statutory provisions (§ 304 of the German Civil Code). Where the contract concerns a non-fungible item to be manufactured by the Seller (custom-made article), the Seller shall only be entitled to further rights if we are under a duty to cooperate and the failure to cooperate is imputable to us.

5. Prices and payment terms

5.1. The price stated in the order is binding. All prices include statutory value-added tax, unless this is indicated separately.
5.2. Unless otherwise agreed in individual cases, the price shall include all the Seller’s services and ancillary services (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
5.3. The agreed price shall fall due for payment within 60 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. The Seller shall grant us a 3% discount on the net amount of the invoice if we make payment within 14 days.
5.4. We will not incur any interest after due dates. Statutory provisions shall apply in the event of delayed payment.
5.5. We are entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent permitted by law. In particular, we are entitled to withhold due payments as long as we are still entitled to claims against the Seller from incomplete or defective performance.
5.6. The Seller only has a right of set-off or retention in the event of legally established or undisputed counterclaims.

6. Confidentiality and retention of title

6.1. We reserve ownership rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after the contract has ended. The documents shall be kept confidential with respect to third parties, even after the contract ends. The confidentiality obligation shall only expire when and to the extent that the knowledge contained in the documents provided has become generally known.
6.2. The above provision applies accordingly to materials and stock (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items that we provide to the Seller for production. While they remain unprocessed, such items shall be stored separately at the Seller’s expense and insured to an appropriate extent against destruction and loss.
6.3. Any processing, commingling or combination (further processing) of provided items by the Seller shall be carried out for us. The same applies if we further process the delivered goods, such that we are considered the manufacturer and acquire ownership of the product at the latest with the further processing in accordance with statutory provisions.
6.4. The ownership of the goods shall be transferred to us unconditionally and without regard to the payment of the price. However, if we accept in individual cases an offer of transfer of title from the Seller conditional upon payment of the purchase price, the Seller's retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. We remain authorised to resell the goods in the ordinary course of business even before payment of the purchase price, with advance assignment of the resulting claim (in the alternative, the simple retention of title extended to resale shall apply). This excludes in any event all other forms of retention of title, in particular the expanded, transferred and extended retention of title to further processing.

7. Defective delivery

7.1. Unless otherwise stipulated below, statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including incorrect and short delivery as well as improper assembly, defective assembly, operating instructions or user manual) and in the event of other breaches of duty on the Seller’s part.
7.2. In accordance with the statutory provisions, the Seller shall be responsible in particular for ensuring that the goods have the agreed quality when the risk passes to us. In any event, those product descriptions which – in particular by designation or reference in our order – are the subject matter of the respective contract or have been included in the contract in the same way as these GTP shall be deemed an agreement on quality. In this connection, it makes no difference whether the product description comes from us, the Seller or the manufacturer.
7.3. We are not obliged to inspect the goods or to make special enquiries about any defects upon conclusion of the contract. By way of a partial deviation from § 442(1), sentence 2 of the German Civil Code, we are therefore entitled to claims for defects without restriction even if the defect was unknown to us at the time of conclusion of the contract due to gross negligence.
7.4. The statutory provisions (§§ 377, 381 of the German Commercial Code) shall apply to the commercial duty to inspect and give notice of defects subject to the following conditions: our duty to inspect is limited to defects that become apparent during our incoming goods inspection under external examination, including the delivery documents (e.g. transport damage, wrong and short delivery), or which are recognisable during our quality control by random sampling. There is no duty to inspect if acceptance has been agreed. For the rest, the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case, shall be decisive. Our obligation to give notice of subsequently discovered defects remains unaffected. Notwithstanding our duty to inspect, our complaint (notification of defects) shall in any event be deemed prompt and timely if it is sent within five (5) working days of discovery or, in the case of obvious defects, of delivery.
7.5. Subsequent performance shall also include the removal of the defective goods and reinstallation if the goods have been installed in or attached to another item in accordance with their nature and intended use; our statutory claim to reimbursement of corresponding expenses shall remain unaffected. The Seller shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that no defect actually existed. Our liability for damages in the event of an unjustified request for elimination of defects shall remain unaffected; however, we shall only be liable in this respect if we have acknowledged or failed in a grossly negligent manner to acknowledge that there was no defect.
7.6. Notwithstanding our statutory rights and the provisions in clause 7.5, the following shall apply Where the Seller does not fulfil its obligation to provide subsequent performance – either by remedying the defect (rectification of defects) or by delivering a defect-free item (replacement delivery), at our discretion – within a reasonable period of time we set, we may remedy the defect ourselves and demand from the Seller reimbursement of the necessary expenses or a corresponding advance payment. If the subsequent performance by the Seller is unsuccessful or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall notify the Seller of such circumstances without delay, if possible in advance.
7.7. For the rest, in the event of a quality or title defect, we are entitled to reduce the purchase price or withdraw from the contract in accordance with statutory provisions. We are also entitled to compensation for damages and expenses in accordance with statutory provisions.

8. Supplier recourse

8.1. In addition to claims for defects, we are entitled to our statutorily stipulated rights of recourse within a supply chain (supplier recourse according to §§ 445a, 445b, 478 of the German Civil Code) without restriction. In particular, we are entitled to demand the exact type of subsequent performance (rectification of defects or replacement delivery) from the Seller that we owe our customer in the individual case. Our statutory right of choice (§ 439(1) of the German Civil Code) is not restricted thereby.
8.2. Prior to our acknowledgement or fulfilment of a claim for defects asserted by our customer (including reimbursement of expenses under §§ 445a(1), 439(2) and (3) of the German Civil Code), we shall notify the Seller and request a written statement with a brief description of the facts. If a substantiated statement is not transmitted within a reasonable period and no amicable solution is brought about, the claim for defects actually acknowledged by us shall be deemed to be owed to our customer. In this case, the burden of providing proof to the contrary shall rest on the Seller.
8.3. Our claims arising from supplier recourse shall also apply if the defective goods have been further processed by us or another entrepreneur, e.g. by installation in another product.

9. Product liability

9.1. If the Seller is responsible for product damage, it shall indemnify us against third party claims to the extent that the cause lies within its sphere of control and organisation and it is liable itself in the external relationship.
9.2. Within the scope of its obligation to indemnify, the Seller shall reimburse expenses in accordance with §§ 683, 670 of the German Civil Code, which arise from or in connection with a third-party claim, including product recalls we undertake. To the extent possible and reasonable, we shall inform the Seller of the content and scope of the recall measures and give them the opportunity to comment. Further statutory claims shall remain unaffected.
9.3. The Seller shall take out and maintain product liability insurance with a lump sum coverage of at least 10 million euro per personal injury/property damage event.

10. Prescription

10.1. Unless otherwise stipulated below, the mutual claims of the contracting parties shall lapse in accordance with statutory provisions.
10.2. Notwithstanding § 438(1)(3) of the German Civil Code, the general prescription period for claims for defects is three (3) years from the transfer of risk. If acceptance has been agreed, the prescription period shall commence upon acceptance. The 3-year prescription period also applies accordingly to claims arising from title defects, whereby the statutory prescription period for in rem restitution claims of third parties (§ 438(1)(1) of the German Civil Code) remains unaffected. Furthermore, claims arising from title defects shall not lapse under any circumstances as long as the third party can still assert the right – in particular in the absence of a prescription period – against us.
10.3. The prescription periods of the law governing the sale of goods including the above extension apply – to the statutory extent – to all contractual claims for defects. Where we are also entitled to non-contractual claims for damages due to a defect, the regular statutory prescription period (§§ 195, 199 of the German Civil Code) shall apply here, unless the application of the prescription periods of the law governing the sale of goods leads to a longer prescription period in individual cases.

11. Choice of law and place of jurisdiction

11.1. These GTP and the contractual relationship between us and the Seller shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the United Nations Convention on the International Sale of Goods (CISG).
11.2. If the Seller is a merchant within the meaning of the German Commercial Code, a public law legal entity or a public law special fund, our registered office in Eichelhardt shall be the exclusive as well as the international place of jurisdiction for all disputes arising from the contractual relationship. The same applies if the Seller is an entrepreneur within the meaning of § 14 of the German Civil Code. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTP or, in accordance with a prior individual agreement, at the Seller’s general place of jurisdiction. Overriding legislation, in particular that concerning exclusive jurisdiction, shall remain unaffected.

Version Date: 07/ 2020