GENERAL TERMS AND CONDITIONS OF SALE AND SUPPLY OF DR. SCHULZE GMBH for use with natural persons or legal entities acting in the course of their commercial or independent work when entering into this contract, or with a legal entity established under public law or a public-law special fund (hereinafter known as Customer). 1. BASES OF THE CONTRACT 1.1 All our goods and services, including consultancy services are rendered by us solely on the basis of these General Terms and Conditions of Sale and Supply. If the Customer has terms and conditions of business which differ from our own, they shall only apply if we have expressly recognised them in writing. They shall not apply even if we have not objected to them in a given instance. 1.2 Our terms and conditions of sale and supply shall also apply for future contracts with the Customer if he has not expressly objected to them. 2. OFFER / CONCLUDING A CONTRACT 2.1 Our offers shall remain subject to change without notice. Our offers shall only be binding in those cases in which we have made them without reservations and submitted them in writing. Orders amending or supplementing binding offers as well as offers placed with us without us having submitted an offer shall be subject to written confirmation. 2.2 The quality of the goods is based exclusively on the agreed technical delivery specifications or, if such are not agreed, on the customary quality and design, considering the production-related customary tolerances. The point in time, at which the risk passes, is decisive for the contractual condition of the goods. Reference to DIN or EN standards, as well as our reference to material sheets, factory tests, technical delivery specifications, etc. do not represent a guarantee of quality. Dimensions, weights, illustrations and drawings as well as the information and illustrations contained in brochures, catalogues and our websites are only binding, if this has been expressly agreed in writing. Public statements by us, our employees or any manufacturers and their employees about the quality of the goods can only justify material defect rights, if they have been expressly made part of a quality agreement. 2.3 We shall reserve the right to carry out amendments to the design / form or materials at any time, provided that the goods are not modified to a considerable extent and their suitability for the use assumed in the contract or normal use is not impaired and the Customer can be expected to accept the modification as being reasonable. We shall not however be obliged as a result thereof to carry out such modifications to products already supplied. 2.4 Our price lists shall be subject to change without notice and non-binding. Mistakes, printing and pricing errors shall be excepted. 2.5 If we have to supply in accordance with the specifications, guidelines specimens etc. supplied by our Customer, he shall bear the risk of the goods supplied being suitable for the intended use. The point in time, at which is passed over, shall be crucial for determining whether the goods are in a condition compatible with the contract. Given this, we shall only be liable for the processing being carried out in a professional manner. 2.6 By placing an order the Customer is making a binding statement that he intends to purchase the goods ordered. We shall be entitled to accept the offer to enter into a contract inherent in the order within two weeks from receipt of the order by us. We may declare acceptance of the offer either in writing or by delivering the goods to the Customer. 2.7 If the Customer refuses to accept the goods – even after a reasonable supplementary period of time he has been set to do so has elapsed – justly or has expressly stated beforehand that he did not intend to accept the goods, we may withdraw from the contract and demand compensation for damages on account of nonfulfilment. Irrespective of the opportunity to prove that the losses actually suffered were higher, and to claim such higher losses, we shall in this case be entitled to demand that the Customer pays 20 % of the net value of the goods plus all the freight charges actually incurred by us as compensation for damages. The Customer shall reserve the right to prove that the losses suffered by us were lower than the lump sum claimed in damages or that we have not suffered any damages or that the damages suffered by us are significantly lower than the lump sum claimed by us for damages. This regulation shall apply accordingly insofar as the Customer withdraws from the contract without justification. 2.8 Provided that the Customer places an order electronically, the text of the contract shall be saved by us and sent to the Customer by e-mail upon request. 3. PRICES 3.1 The prices shall be quoted ex works plus the rate of VAT in force at that time, but will not, however, include packing, freight, insurance and customs’ duty. The sales tax will be calculated by us at the rate applicable on the day of performance. 3.2 We shall not increase our prices provided that the items upon which the agreement has been based are not modified and may be rendered without hindrances for which the Customer is responsible. Subsequent additions and modifications leading to an increase in time taken by us or additional expense for materials etc. shall also have to be paid by the Customer in addition to the price already agreed. 4. PAYMENTS / DEFAULT IN PAYMENT 4.1 The amount invoiced shall be payable immediately. Discounts will not be granted for prompt payment. 4.2 Periods of time agreed for payment shall only have been observed if we are able to dispose of the amount to be paid by the date on which payment is due. 4.3 Drafts and cheques shall only be accepted by us by special arrangement as a conditional payment. Charges or other costs arising with the submission of a cheque or draft shall be for the Customer’s account. 4.4 In the event that there is a default in payment, we shall be entitled to charge default interest amounting to 9 % above the base rate at that time (Section 288 of the German Civil Code [BGB]). We shall reserve the right to prove that the loss suffered by us as a result of the default is higher and to claim this higher loss. In particular we shall reserve the right to also claim those costs we incur if after payment is in default we have to call in third parties to protect our rights. 4.5 If there is a significant deterioration in the financial status of the Customer, we shall be entitled to only supply our goods and services if payment is made in advance or on delivery or make them dependent upon a security being furnished. Accounts receivable we have for services already rendered shall in this case be payable immediately. This shall apply in particular if payments subsequently due after there is a default in payment are not paid despite a reasonable period of time having elapsed or if an application is made for insolvency proceedings to be opened. If the Customer fails to fulfill our request to furnish a security within a reasonable period of time defined by us, we shall be entitled to withdraw from the contract. 4.6 Prices may be amended if more than 4 months elapse between the contract being signed and an agreed delivery date (even if part deliveries are made and down payments are made). If there is an increase in wages, the cost of materials changes thereafter prior to the consignment being manufactured, we shall consequently be entitled to amend the price accordingly to reflect the increases in costs. The Customer shall only be entitled to withdraw from the contract if the price increase exceeds the increase in the general cost of living between the date on which the order was placed and delivery by a significant amount. 4.7 If the Customer is a registered trader, a legal entity under public law or a public law special fund, price changes are allowed in accordance with the above regulation, if more than six weeks elapse between the contract being entered into and the agreed delivery date. 5. OFFSETTING / RIGHT TO WITHHOLD PERFORMANCE / ASSIGNMENT 5.1 The Customer may only exercise a right to withhold performance if his counterclaim is based upon the same contractual relationship. 5.2 The Customer shall only have a right to offset if his counter-claims have been adjudicated or have been recognised by us. 5.3 Claims against us may only be assigned by the Customer to third parties and he may only allow third parties to collect them with our prior written consent, unless they are accounts which are not contested, ready for judgment or have been adjudicated. 6. DELIVERY PERIOD / PERFORMANCE PERIOD 6.1 The delivery period quoted by us shall only be binding if it is expressly designated as being such and confirmed by us in writing. It shall begin when the order confirmation is sent out by us but not, however, before any documents, licences, clearances which may have to be obtained by the Customer have been supplied to us together with any down payment agreed. If subsequent technical ambiguities or defects should arise in the Customer’s order documents or drawings, or if amendments are agreed subsequently, the delivery period shall start all over again after they have been clarified / rectified. 6.2 Part-deliveries are allowed within the delivery periods quoted by us provided that no disadvantages accrue to the Customer with regard to their use. 6.3 A contract shall be entered into subject to the reservation that we have been supplied with the correct goods and on time by our supplier. This shall only apply in the event that our failure to supply our Customer is not attributable to us, in particular if we have entered into a congruent covering transaction with our supplier. 6.4 Periods and deadlines shall have been observed by us if the delivery consignment has left our works before the period or deadline has expired or if we have notified the Customer that the consignment is ready for collection / dispatch. If acceptance has been agreed or provided for by law, delivery and performance periods shall refer to the point in time of acceptance. 6.5 If non-compliance of delivery and performance periods attributable to the occurrence of unforeseen hindrances, which are beyond our control, and for which we are not responsible, these periods shall be extended as appropriate by at least the duration of the hindrance or disruption. This shall apply in instances of force majeure as well as for strikes, lock-outs, official instructions even if such circumstances affect our suppliers and sub-contractors, provided that they have a considerable impact upon the goods and services to be rendered by us being carried out. If the disruptions last longer than eight uninterrupted weeks, each Party to the contract shall be entitled to withdraw from part of or all of the contract. 110
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