§ 1 General:
The deliveries, services and offers of Schnick-Schnack-Systems GmbH (hereinafter referred to as Schnick-Schnack-Systems) shall take place exclusively on the basis of the following general conditions (hereinafter referred to as GSD), which shall become an integral part of any purchase contract.
Conflicting or deviating purchase conditions or other reservations made by the buyer shall not be acknowledged, even if Schnick-Schnack-Systems has not explicitly objected to them in each individual case. These GSD shall only apply if the buyer is an entrepreneur (§14 BGB (German Civil Code)), a legal entity under public law or a special asset under public law.
§ 2 Offers, orders:
Product related information of Schnick-Schnack-Systems in catalogues, brochures or advertisements do not represent a legally binding offer. The buyer’s orders shall become binding on Schnick-Schnack-Systems only upon receipt of Schnick-Schnack-Systems’ written order confirmation. The legal preference of individual agreements shall remain unaffected.
Individual offers submitted to the buyer by Schnick-Schnack-Systems can be accepted by the buyer in writing within 14 days after receipt of the offer. If acceptance is not declared within the above mentioned deadline, Schnick-Schnack-Systems shall no longer be bound to the offer, and a new offer shall be required.
Schnick-Schnack-Systems reserves the right to modify the terms of a contract and/or an offer in case of mandatory legal requirements or technical standards, as long as these modifications are reasonable for the buyer.
Schnick-Schnack-Systems shall be entitled to partial performance of services as long as the partial services are of genuine use to the customer in isolation from each other.
§ 3 Prices:
Schnick-Schnack-Systems shall be exclusive of the statutory VAT.
§ 4 Payment:
Payment of all invoices issued by Schick-Schnack-Systems shall be made within 10 days after the date of invoice without deduction, unless otherwise agreed. In case of default of payment by the buyer, Schnick-Schnack-Systems shall be entitled to the imposition of the statutory interest rate.
Should Schnick-Schnack-Systems have justified reason to doubt the buyer’s creditworthiness and if the buyer is not prepared, despite a relevant request, to effect advance cash payment or provide security, Schnick-Schnack-Systems shall have the right to withdraw from that part of the contract which has not yet been performed.
Schnick-Schnack-Systems reserves the right to allocate payments to settle the oldest due invoices plus any incurred default interest and costs, in the following order: costs, interest, principal claim.
The buyer shall not have the right to withhold or offset payments, unless they are uncontested or have been determined legally valid.
§ 5 Deliveries:
Schnick-Schnack-Systems shall make every effort to effect delivery as early as possible. There shall be no fixed periods for delivery. Deviating delivery dates or periods agreed shall only become effective if made in writing. The legal preference of individual agreements shall remain unaffected. Should a corresponding fixed period for delivery have been agreed, the buyer shall grant a reasonable respite of normally four weeks in the event of default of delivery.
Delivery shall be subject to correct and punctual delivery by Schnick-Schnack-Systems’ suppliers. Schnick-Schnack-Systems shall be entitled to withdraw from the contract in case Schnick-Schnack-Systems itself is not delivered with the respective goods within a reasonable timeframe and in the contractually agreed condition, and if Schnick-Schnack-Systems is not responsible for said non-delivery. Schnick-Schnack-Systems shall in this case immediately inform the buyer with regard to the non-availability of the object to be delivered and, in case of a withdrawal of the buyer from the contract, immediately refund corresponding payments already made by the buyer. The buyer’s rights as set forth in particular in § 8 to 10 shall remain unaffected.
§ 6 Shipment:
The buyer shall bear the costs for the shipment of the goods from place of business of Schnick-Schnack-Systems.
The risk of destruction, loss or damage of the goods shall pass to the buyer upon transfer of said goods to the person effecting transport or, if collected by the buyer, at the time the goods are placed at the buyer’s disposal. Should delivery be delayed upon request of the buyer, the risk shall be passed on to the buyer upon announcement of readiness for dispatch.
Upon request by the buyer, deliveries shall be insured in the buyer’s name and at the buyer’s expense.
Should the buyer detect any damage of the goods upon unpacking, which is caused by improper handling during transportation, the buyer shall immediately after detection of such damage but at the latest seven days after receipt of the delivery inform Schnick-Schnack-Systems and the responsible freight company, urgent goods or express goods organisation or delivery post office in writing.
§ 7 Retention of title:
The title to the goods shall only be transferred to the buyer upon fulfilment of all liabilities arising from the business connection with Schnick-Schnack-Systems, including ancillary claims and claims for damages.
Schnick-Schnack-Systems shall be entitled to withdraw from the agreement and to claim back the goods subject to reservation of title in case of lack of assets or impending lack of assets of the buyer.
The buyer shall be under obligation to carefully keep and maintain the goods subject to retention of title on behalf of Schnick-Schnack-Systems at its own expense. The buyer shall furthermore be under obligation to adequately insure the goods subject to retention of title at its own expense against all customary risks, in particular against fire, theft and water hazards. The buyer shall already assign to Schnick-Schnack-Systems any corresponding claims accruing under the insurance policies. Schnick-Schnack-Systems shall accept said assignment.
If goods subject to retention of title are processed into new products, the buyer shall be deemed to be acting on behalf of Schnick-Schnack-Systems without acquiring any claims against Schnick-Schnack-Systems pertaining to said processing. Schnick-Schnack-Systems’ retention of title shall thus extend to the products resulting from such processing. If goods subject to retention of title are processed together with, mixed with or attached to goods being the property of third parties, Schnick-Schnack-Systems shall acquire co-ownership of the resulting products in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the goods owned by said third parties. If the goods subject to retention of title become part of a principal item of the buyer, the buyer shall already assign to Schnick-Schnack-Systems its rights of ownership to the new item.
As long as the buyer duly meets its obligations towards Schnick-Schnack-Systems, the buyer shall be entitled to, in the normal course of business, sell or otherwise dispose of the goods subject to retention of title; this shall not apply, however, if the buyer and its customers have agreed that the buyer’s claim to the purchase price shall not be assignable to third parties. The buyer shall not have the right to pledge, chattel mortgage or otherwise encumber the goods subject to retention of title. When reselling these goods, the buyer shall make the transfer of ownership subject to full payment of the goods by its customers.
By accepting these GSD, the buyer shall assign to Schnick-Schnack-Systems in advance any claims which may arise from a resale of the goods subject to retention of title, together with any incidental rights and security interests, so as to provide Schnick-Schnack-Systems with security for all claims it has against the buyer as a result of the business connection. If goods subject to retention of title are sold together with other goods at an overall price, the assignment shall be limited to the portion of the invoice of the seller for the goods subject to retention of title. If goods are sold to which Schnick-Schnack-Systems retains co-ownership pursuant to the above provisions, the assignment shall be limited to the portion of the receivables which corresponds to he share of Schnick-Schnack-Systems’ co-ownership. If the buyer uses goods subject to retention of title for refinement against payment of third party property, then it shall hereby assign in advance its remuneration claim against said third party to Schnick-Schnack-Systems with all ancillary and security rights for the above stated security purpose. Schick-Schnack-Systems shall already accept said assignment. As long as the buyer duly meets its payment obligations towards Schnick-Schnack-Systems, it may collect claims from a resale or from refinement itself. The buyer shall not be entitled to assign or pledge such claims as security.
If Schnick-Schnack-Systems believes its claims to be at risk, the buyer shall, at Schnick-Schnack-Systems’ request, inform its customers of the assignment of its claims to Schnick-Schnack-Systems and supply all necessary information and documents.
If the realisable value of the security provided exceeds the value of the claims of Schnick-Schnack-Systems by more than 10 %, Schnick-Schnack-Systems shall, at the buyer’s request, release security at our discretion.
§ 8 Notification of defects, warranty:
Unless expressly specified in the following, the statutory provisions shall apply to the rights of the buyer in case of defects in title or quality. Should the warranty claim be made by the buyer in recourse, following a successful claim against the latter under the provisions of the consumer goods legislation (§§ 478, 479 BGB), then the rights of recourse of the buyer as provided for in the regulations governing consumer goods legislation shall remain unaffected.
The buyer shall be under obligation to file any notifications of defects in writing immediately, at the latest however within seven days after receipt of the goods. Notification of hidden defects shall have to be filed immediately after discovery of said defect. The buyer shall bear the burden of proof as to whether or not a defect is to be considered as hidden. If these notification periods are not adhered to, then the enforcement of warranty claims for these defects shall be excluded.
Defect claims of the buyer shall be limited in first instance to the right to rectification or redelivery. The right of choice between rectification of defects and redelivery shall rest in all cases with Schnick-Schnack-Systems. Only if subsequent performance fails shall the buyer be entitled to withdraw from the contract or reduce the purchase price. Rectification of defects shall only be deemed to have failed after the second unsuccessful attempt. Claims for damages according to § 10 shall remain unaffected.
§ 9 Limitation:
Warranty claims in the case of § 438 par. no. 3 BGB, shall expire with effect from one year of the beginning of the statutory period of limitation. Compelling statutory regulations governing the period of limitation and liability issues, e.g. liability for the assumption of a guarantee, liability for wilful intent and gross negligence, death, physical injury or damage to health, for the violation of essential contractual obligations, (i.e. obligations whose fulfilment is a prerequisite for enabling the proper fulfilment of the contract in the first place and in which the contractual partner may normally trust), liability in accordance with the product liability act (German:“Produkthaftungsgesetz”) and the provisions regarding consumer goods (German:“Verbrauchsgüterkauf”) shall remain unaffected.
§ 10 Compensation for damages:
Schnick-Schnack-Systems shall be liable without restraint according to the provisions of the product liability act (German:"Produkthaftungsgesetz“) in case of the explicit assumption of a respective guarantee or in case Schnick-Schnack-Systems has assumed the procurement risk or in case of wilful or gross negligent breach of duties. Schnick-Schnack-Systems is also liable without restraint in case of wilful or gross negligent injury to life, body or health.
In all other cases of material and financial damages caused by simple negligence, Schnick-Schnack-Systems shall only be liable in case of a violation of essential contractual obligations (i.e. obligations whose fulfilment is a prerequisite for enabling the proper fulfilment of the contract in the first place and in which the contractual partner may normally trust), but limited to damages foreseeable upon conclusion of the contract and typical for the respective kind of contract.
Schnick-Schnack-Systems shall not be liable for damages caused by improper use of the contractual goods by the buyer, unless Schnick-Schnack-Systems is responsible for such improper use. Schnick-Schnack-Systems shall also not be liable for damages which the buyer could have prevented by reasonable measures.
Due to the complex technology of the products sold by Schnick-Schnack-Systems, a certain error frequency cannot be excluded. Contract-compliant use of the products therefore includes in particular that the buyer shall allow for a customary amount of spare parts and not install the products in such a way that an exchange in case of a warranty claim can only be conducted with unreasonably high costs.
The foregoing limitations of liability shall also be applicable to Schnick-Schnack-Systems’ legal representatives, employees and all other subcontractors and vicarious agents.
§ 11 Technical consultation, application:
The application-related oral or written consultation provided by Schnick-Schnack-Systems is based on best knowledge, but shall only be considered as non-binding information and shall not release the buyer from exercising its own assessment of the suitability of the delivered products for the envisaged processes and purposes. The exclusive responsibility for the application, use and processing of the products shall be borne by the buyer, as they are beyond the control of Schnick-Schnack-Systems.
Schnick-Schnack-Systems cannot exclude incompatibilities between the Schnick-Schnack-Systems software and programmes of third parties, which are not provided together with products made by Schnick-Schnack-Systems. Schnick-Schnack-Systems shall not be liable for such incompatibilities.
Under no circumstances may products delivered by Schnick-Schnack-Systems be used in safety critical areas, for medical instruments or for other applications, the functioning of which is essential in order to not endanger the life or health of humans or animals.
§ 12 Awarding of rights of use:
In case Schnick-Schnack-Systems provides a customer with products for demonstration or testing purposes, whether free of charge or against a respective compensation, or in case Schnick-Schnack-Systems rents products to a customer, these GSD except for §§ 7 to 9 shall be applicable. Furthermore, the following provisions of shall apply:
The products provided by Schnick-Schnack-Systems are complex technical devices and are therefore extremely sensitive to interference. Therefore, the products need to be treated with particular care and may only by operated by trained technical personnel.
The customer shall treat the products provided by Schnick-Schnack-Systems with care. The products may only be installed, operated and dismantled by competent personnel. The customer shall be responsible for compliance with all applicable safety regulations. Furthermore, the customer shall be obliged to insure the products at its own expense against all customary risks, (loss, theft, damage, liability) in a proper and adequate way.
The customer shall keep the products of Schnick-Schnack-Systems free of any encumbrances, demands, pledges and other legal claims of third parties. The customer shall inform Schnick-Schnack-Systems of any such measures by third parties and hand over to Schnick-Schnack-Systems all necessary documents. The customer shall bear the costs connected with the defence against any such measures, unless they are related to the sphere of Schnick-Schnack-Systems.
The products must be returned completely, arranged and in clean condition on the agreed date. For each day of delayed return, Schnick-Schnack-Systems shall be entitled to an appropriate usage compensation from the customer.
In case of culpable damage to or loss of the products, the customer shall be obliged to compensate Schnick-Schnack-Systems for the costs of repair, or, in case of total damage or loss, the replacement value (minus the remaining value, if applicable). In addition, the customer shall compensate potentially occurring consequential damage, including loss in value, lost rental business and a lump-sum payment for administrative expenses.
§ 13 Place of performance and jurisdiction; Validity clause:
Place of performance for the delivery shall by Schnick-Schnack-Systems' respective dispatch department; the place of performance for payment shall be Cologne.
Place of jurisdiction for both parties shall be Cologne. Schnick-Schnack-Systems shall furthermore have the right to assert his claims at the general place of jurisdiction of the buyer.
Should individual clauses of these general terms of sale and delivery be or become fully or partly invalid, this shall not affect the validity of the remaining clauses or remaining parts of the clause concerned. The parties shall replace any invalid regulation by an effective one which is as far as possible compliant with the economic purpose of the invalid clause.
Status: Cologne, October 2017
50829 Cologne, Germany
Phone: +49 (0) 221/99 20 19-0
Fax: +49 (0) 221/16 85 09-73