General sales and delivery conditions: Schwer Fittings GmbH, Germany

General sales and delivery conditions: Schwer Fittings GmbH, Germany

General Terms Schwer Fittings Ltd., England

The following sales and delivery conditions apply to all contracts with the exception of individual cases where other ­agreements have been explicitly made in writing. General terms and conditions of our contractual partners will only apply if we have accepted these in writing upon conclusion of the respective contract.

I. Tenders

Tenders are subject to change without notice. In the case of production to customers patterns or blueprints, we ­reserve the right to apply a surplus or short delivery of up to 10%. The technical documentation associated with the tender, such as drawings, blueprints, weight & measure specifications, serve for information purposes and do not represent an ­assertion of characteristics unless specifically designated as binding. Schwer Fittings GmbH will retain all proprietary and intellectual property rights relating to the tender documentation. The purchaser is under the obligation to not make any plans that are designated as confidential accessible to third parties. The purchaser is liable for his employees.

II. Conclusion of contracts

Contracts must take the written form to be deemed effective. Oral subsidiary agreements are not permissible.

III. Prices and payments

a. Prices are ex works and include loading. The purchaser will cover packaging and shipping costs. Prices are excluding the respective statutory value-added tax (VAT).

b. Where not otherwise agreed in writing, payment is due immediately upon receipt of goods. However, a purchaser is not deemed to have fallen into arrears until 30 days have passed unless a reminder note has been issued.

c. The purchaser may only offset outstanding debits or exercise rights of retention where this is uncontested or has been deemed legally effective. 

IV. Delivery period

a. The delivery period stated in the tender commences with dispatch of the order confirmation but not before provision of the documents, permissions and approvals that are to be collected by the purchaser and receipt of a downpayment as agreed.

b. The delivery period is deemed to have been met if the goods have left the works or have been reported as ready for dispatch up to the time that it expires.

c. The delivery period will be extended commensurately upon occurrence of circumstances that are not the responsibility of Schwer Fittings GmbH, e.g. measures within the framework of industrial action (strikes) or uninfluenceable events if these prevent adherence to the delivery period. This also applies when circumstances occur with sub-contractors.

Schwer Fittings GmbH will immediately inform the purchaser of the occurrence of these events and the anticipated extension of the delivery period.

d. In the event of the delivery period being exceeded, the purchaser is legally obliged to set an appropriate extension which, in the case of contracts with Schwer Fittings GmbH, must be 4 weeks. After this extension has expired ­without success, the purchaser must declare, within an appropriate time period, whether they will continue to demand ­delivery or whether they will withdraw from the contract due to the delay.

e. If the purchaser may claim damages due to the delivery period being exceeded, these are limited to 20% of the value of that part of the total consignment that cannot be utilised in good time due to the delay. This restriction does not apply in the case of intent or gross negligence.

f. If delivery is delayed at the request of the purchaser, the purchaser will be invoiced for storage charges commencing from one month after notification of readiness to dispatch which in the case of storage at the Schwer Fittings GmbH factory – will amount to at least half of one percent of the invoice amount, invoiced monthly.

V. Deliver

a. The risk is transferred to the purchaser at the latest on dispatch of the goods, even in the case of partial deliveries or where Schwer Fittings GmbH is undertaking other services, e.g. shipping costs or delivery and assembly.

b. If desired by the purchaser, the consignment will be insured against breakage, as well as transportation, fire and water damage at the cost of the purchaser.

c. If delivery is delayed for reasons that are not the responsibility of Schwer Fittings GmbH, the risk is transferred to the purchaser upon declaration of readiness to dispatch, but if desired and paid for by the purchaser, Schwer Fittings GmbH undertakes to arrange the insurance as desired by the purchaser.

d. Schwer Fittings GmbH is entitled to make partial shipments. In this event, Schwer Fittings GmbH may present partial invoices.

e. The purchaser is only entitled to refuse to accept delivery if there are serious faults with the consignment.

Agreed returns:

f. If, within three months of the goods being received, they are not used, installed, damaged or soiled, the purchaser may apply for them to be returned. If Schwer Fittings GmbH consents to this, the purchaser will receive a credit note to the sum of 70% of the net goods value after receipt of the goods at Schwer Fittings GmbH. In the case of ­­non-agreed goods return, Schwer Fittings GmbH retains the right to refuse to accept the goods.

VI. Reservation of title

a. All delivered goods will remain the property of Schwer Fittings GmbH until the full sale price has been paid, including all ancillary costs. During the period of reservation of title, the purchaser is not entitled to assign the delivered goods or to transfer them as security.

b. If the purchaser becomes owner of the goods by attachment of a movable object, by processing or by alteration, they transfer, subject to deviating written agreements, the ownership of the resultant object to Schwer Fittings GmbH as security for their claim. At the same time, the parties agree in advance that the purchaser will keep the object safe for Schwer Fittings GmbH free of charge. The purchaser is entitled to dispose of the product or the new object produced therefrom in the normal course of business. In individual cases, the claims with regard to third parties resulting from the sale will be assigned by way of security to Schwer Fittings GmbH in the amount of the original invoice amount ­without this necessitating a separate agreement. Schwer Fittings GmbH will accept the assignment. So long as the purchaser meets their payment obligations with regard to Schwer Fittings GmbH, they are entitled to collect the claim against third parties for the invoice of Schwer Fittings GmbH. However, Schwer Fittings GmbH is entitled to inform the third party, who is to be named at the request of the purchaser, of the transfer of claim and can validate the claim in their own name. In the event of delay in payment, Schwer Fittings GmbH is entitled to seize or otherwise take ­possession of the goods. In case of doubt, exercising of this right is not deemed to be withdrawal from the contract. As soon as the purchaser has met their payment obligations, Schwer Fittings GmbH will deliver goods again to the purchaser with an appropriate new delivery period.

c. In the event of third party claims, especially where the subject of the sale is seized, the purchaser must immediately inform Schwer Fittings GmbH in writing and also immediately inform the third party of the proprietary rights of Schwer Fittings GmbH..

VII. Characteristics agreement, notification of defects and rights arising from product defects

a. When used in single-shift operation, it is agreed that all products from Schwer Fittings GmbH will be guaranteed to provide trouble-free operation for one year, in accordance with § 434 paragraph 1 section 1 of German Federal Law (BGB). When used in two-shift operation the guarantee is for 6 months, and in three-shift operation, three months.

b. The purchaser must check the products immediately and inform Schwer Fittings GmbH of all defects at the latest ­within one week of their discovery. Rights arising from product defects lapse 12 months after transfer of risk.

c. All parts that become faulty, within 12 months of transfer of risk and within the agreed operational duration, due to ­circumstances that existed before transfer of risk (especially due to faulty manufacturing, poor quality of materials or production), will be repaired or replaced, at the discretion of Schwer Fittings GmbH, free of charge. The ownership of replaced parts is transferred to Schwer Fittings GmbH. The repaired or replaced items will be guaranteed in the same manner as the subject of the delivery. In the case of repair, the obligation to provide a guarantee is extended by the time required to carry out the repair work.

d. The purchaser is not entitled to remedy faults themselves or via third parties at the cost of Schwer Fittings GmbH unless Schwer Fittings GmbH has not repaired the fault within the granted statutory repair period. The purchaser is also permitted fault remedy without a repair period being set if this is necessitated by a threat to operating safety or where Schwer Fittings GmbH is not in a position to immediately repair the defect.

e. If Schwer Fittings GmbH does not remedy the defect despite having been granted an appropriate time extension with warning of refusal by the purchaser, or where the attempt to affect a repair has failed, then the purchaser may ­withdraw from the contract.

f. Section VIII will apply to claims for damages.

VIII. Liability

Schwer Fittings GmbH is only liable for damage that results from an intentional or grossly negligent failure to comply with obligations from themselves, their representatives or their vicarious agents. Excluded from this liability limitation are damages that arise from failure to comply with an obligation whose upholding is of particular importance for the fulfilment of the contractual purpose (cardinal obligation), unless this damage is unforeseeable or not typical to the ­contract. Other damages that are excluded from the liability limitation are damages caused by injury to life, physical well-being or health. Liability is unlimited insofar as e.g. in the case of personal damages or damages to privately used objects, liability will be in accordance with the product liability law.

IX. Intellectual property rights

In the case of special production runs, the purchaser will undertake to guarantee that the intellectual property rights of third parties are not infringed during production. If Schwer Fittings GmbH is prevented from producing the respective article due to intellectual property rights, they are entitled to immediately cease production and to demand compensation for the outlaid costs from the purchaser. The purchaser is obliged to settle any damages or compensation claims arising from infringement of intellectual property rights in full amount.

X. Supplementary conditions

a. Common commercial free size tolerances (DIN 7168 medium DIN 3141 R 2) are reserved.

b. The place of performance for delivery and payment is 78588 Denkingen (Württemberg), Germany.

c. Court of jurisdiction: Spaichingen District Court or Rottweil am Neckar Provincial Court.

d. The law of the Federal Republic of Germany will exclusively apply to this contract. If one or more of the clauses are or become ineffective, this does not affect the validity of the remaining clauses. The contractual parties will replace the invalid clause with one that comes closest to the commercial purpose of the contract.

Schwer Fittings GmbH · CEO: Marco Schwer · Hans-Schwer-Platz 1 · D-78588 Denkingen · Germany

Registergericht Tuttlingen HRB 569 Sp. · Steuer-Nr. 21 115/32840 · USt.-IdNr. DE811729673 · Stand: 01.05.2020