General Terms and Conditions of Purchase of Pro Schütz GmbH

1. Scope, Form 

1. These General Terms and Conditions of Purchase (“PO Terms”) apply to all business relationships with our business partners and suppliers (“Seller”). They form part of all contracts that we conclude with our suppliers and business partners regarding the deliveries or services offered by them. These PO Terms apply only if the Seller is an entrepreneur (§ 14 German Civil Code – BGB), a legal entity under public law, or a special fund under public law.

2. The PO Terms apply in particular to contracts for the sale and/or delivery of movable goods (“goods”), regardless of whether the seller manufactures the goods itself or purchases them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, these PO Terms shall apply in the version valid at the time of the buyer's order or, in any case, in the version last communicated to the buyer in text form as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.

3. These PO Terms apply exclusively. Any deviating, conflicting, or supplementary general terms and conditions 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 requirement of consent shall apply in all cases, for example, even if we accept the seller's deliveries without reservation in full knowledge of the seller's general terms and conditions. Unconditional acceptance does not constitute agreement with the validity of those terms and conditions.

4. Individual agreements made with the seller in individual cases (including collateral agreements, supplements, and amendments) shall in all cases take precedence over these PO Terms. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

5. Legally relevant declarations and notifications by the seller in relation to the contract (e.g., setting deadlines, reminders, withdrawal) must be made in writing, i.e., in written or text form (e.g., letter, email, fax). Legal formal requirements and further evidence, in particular in cases of doubt about the legitimacy of the declarant, remain unaffected.

6. References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these PO Terms.

2. Formation of Contract

1. Our order shall only be considered binding once it has been submitted or confirmed in writing. The seller must notify us of any obvious errors (e.g., typing or calculation errors) and omissions in the order, including the order documents, for the purpose of correction or completion prior to acceptance; otherwise, the contract shall be deemed not to have been concluded.

2. The seller is required to confirm our order in writing within seven days or, in particular, to execute it without reservation by shipping the goods (acceptance).

3. A delayed acceptance is considered a new offer and requires acceptance by us.

3. Delivery time and delivery delay

1. The delivery time specified by us in the order is binding. If the delivery time is not specified in the order and has not been agreed otherwise, it shall be four weeks from the conclusion of the contract. The seller is obliged to inform us immediately in writing if, for whatever reason, it is unlikely to be able to meet the agreed delivery times.

2. If the seller fails to perform or does not perform within the agreed delivery period, or if the seller is in default, our rights—in particular to withdrawal and compensation—shall be determined in accordance with the statutory provisions. The provisions in § 3.3 below remain unaffected.

3. If the seller is in default, we may—in addition to further legal claims—demand lump-sum compensation for our damage caused by the delay in the amount of 1% of the net price per completed calendar week, but not more than 5% of the net price of the goods delivered late. We reserve the right to prove that higher damages have been incurred. The seller reserves the right to prove that no damage or only significantly less damage has been incurred.

4. Performance, Delivery, Transfer of Risk, Default of Acceptance

1. The seller is not entitled to have the service owed by him performed by third parties (e.g. subcontractors) without our prior written consent. The seller bears the procurement risk for his services, unless otherwise agreed in individual cases (e.g. restriction to stock).

2. Delivery within Germany is free of charge to the location specified in the order. If the destination is not specified and nothing else has been agreed, delivery shall be made to our place of business (Theodor-Heuss-Ring 83, 23795 Bad Segeberg). The respective destination is also the place of performance for the delivery and any subsequent performance (obligation to deliver).

3. The delivery must be accompanied by a delivery note stating the date (issue and dispatch), the contents of the delivery (item number and quantity) and our order reference (date and number). If the delivery note is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. Separate from the delivery note, a corresponding shipping notice with the same content must be sent to us.

4. The risk of accidental loss and accidental deterioration of the goods shall pass to us upon delivery at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis in the event of acceptance. Delivery or acceptance shall be deemed to have taken place if we are in default of acceptance.

5. The statutory provisions shall apply to the occurrence of our default in acceptance. However, the seller must expressly offer us his performance even if a specific or determinable calendar time 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 his additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract concerns an item to be manufactured by the seller that is not fungible (custom-made item), the seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.

5. Prices, Terms of Payment

1. The price stated in the order is binding. All prices include statutory sales tax, unless this is shown separately.

2. Unless otherwise agreed in individual cases, the price includes all services and ancillary services provided by the seller (e.g., assembly, installation) as well as all ancillary costs (e.g., proper packaging, transport costs including any transport and liability insurance).

3. The agreed price is due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the seller grants us a 3% discount on the net amount of the invoice. In the case of bank transfers, payment shall be deemed to have been made on time if our transfer order is received by our bank before the expiry of the payment deadline; we shall not be responsible for delays caused by the banks involved in the payment process.

4. Interest on arrears is not payable. The statutory provisions apply to late payments.

5. We are entitled to set-off and retention rights as well as the defense 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 still have claims against the seller for incomplete or defective services.

6. The seller shall only have a right of set-off or retention on the basis of legally established or undisputed counterclaims.

6. Confidentiality and retention of title

1. We reserve ownership rights and copyrights to illustrations, plans, drawings, calculations, implementation instructions, product descriptions, and other documents. Such documents are to be used exclusively for the contractual service and returned to us after completion of the contract. The documents are to be kept confidential from third parties, even after termination of the contract. The confidentiality obligation shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known.

2. The above provision shall apply mutatis mutandis to substances and materials (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 manufacturing purposes. Such items shall be stored separately at the seller's expense and insured to an appropriate extent against destruction and loss, provided they are not processed.

3. Any processing, mixing, or combining (further processing) of items provided by the seller shall be carried out on our behalf. The same shall apply to any further processing of the delivered goods by us, so that we shall be deemed the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.

4. The transfer of ownership of the goods to us must take place unconditionally and regardless of payment of the price. However, if, in individual cases, we accept an offer of transfer of ownership 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. In the ordinary course of business, we remain authorized to resell the goods even before payment of the purchase price, with advance assignment of the resulting claim and collection of the claim (alternatively, simple retention of title extended to resale applies). This excludes all other forms of retention of title, in particular extended retention of title, transferred retention of title, and retention of title extended to further processing.

7. Defective Delivery

1. Unless otherwise specified below, our rights in the event of material defects and defects of title in the goods (including incorrect and short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the seller shall be governed by the statutory provisions.

2. In accordance with statutory provisions, the seller is liable in particular for ensuring that the goods have the agreed quality when the risk is transferred to us. In any case, the product descriptions that are the subject of the respective contract – in particular through designation or reference in our order – or that have been incorporated into the contract in the same way as these GTC are deemed to be an agreement on quality. It makes no difference whether the product description originates from us, the seller, or the manufacturer.

3. The statutory provisions (§§ 377, 381 HGB) apply to the commercial obligation to inspect and give notice of defects, with the following proviso: Our obligation to inspect is limited to defects that are apparent during our incoming goods inspection based on external examination, including the delivery documents (e.g., transport damage, incorrect or short delivery) or that are detectable during our quality control using random sampling. If acceptance has been agreed, there is no obligation to inspect. In all other respects, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. Notwithstanding our obligation to inspect, our complaint (notification of defects) shall in any case be deemed to have been made immediately and in good time if, in the case of hidden defects, it is sent within 10 days of discovery or, in the case of obvious defects, within 2 days of delivery.

4. Subsequent performance also includes the removal of the defective goods and their reinstallation, provided that the goods have been installed in or attached to another item in accordance with their nature and intended use; our statutory claim for reimbursement of corresponding expenses remains unaffected. Our liability for damages in the event of unjustified requests for the rectification of defects remains unaffected in accordance with § 10 below; however, we shall only be liable in this respect if we recognized or failed to recognize through gross negligence that no defect existed.

5. Notwithstanding our statutory rights, the following applies: If the seller fails to fulfill its obligation to remedy the defect—at our discretion, either by repairing the defect (rectification) or by delivering a defect-free item (replacement delivery)—within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the seller for the necessary expenses or a corresponding advance payment. If the seller's subsequent performance has failed or is unreasonable for us (e.g., due to particular urgency, endangerment of operational safety, or the threat of disproportionate damage), no deadline need be set; we shall inform the seller of such circumstances immediately, if possible in advance.

6. Furthermore, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to compensation for damages and reimbursement of expenses in accordance with the statutory provisions.

8. Supplier Recourse

1. We are entitled to our statutory rights of recourse within a supply chain (supplier recourse pursuant to Sections 445a, 445b, 478 BGB) without restriction in addition to our claims for defects. In particular, we are entitled to demand from the seller exactly the type of subsequent performance (repair or replacement delivery) that we owe our customer in each individual case. Our statutory right of choice (Section 439 (1) BGB) is not restricted by this.

2. Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses in accordance with Sections 445a (1), 439 (2) and (3) of the German Civil Code (BGB)), we will notify the seller and request a written statement, briefly explaining the facts of the case. If a substantiated statement is not provided within a reasonable period of time and no amicable solution is reached, the defect claim actually granted by us shall be deemed to be owed to our customer. In this case, the seller shall be responsible for providing evidence to the contrary.

3. Our claims for 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. Manufacturer’s Product Liability

1. If the seller is responsible for product damage, they shall indemnify us against third-party claims to the extent that the cause lies within their sphere of control and organization and they themselves are liable in relation to third parties.

2. As part of its indemnification obligation, the seller shall reimburse expenses in accordance with Sections 683 and 670 of the German Civil Code (BGB) arising from or in connection with claims by third parties, including recall campaigns carried out by us. We shall inform the seller of the content and scope of recall measures—as far as possible and reasonable—and give it the opportunity to comment. Further legal claims remain unaffected.

3. The seller must take out and maintain product liability insurance with an appropriate amount of coverage.

10. Own Liability for Damages

1. We shall only be liable for damages, regardless of the legal basis, in cases of intent and gross negligence on the part of our organs and vicarious agents. The above exclusion of liability shall not apply to breaches of material contractual obligations. In the event of a breach of material contractual obligations, liability shall be limited to typical, foreseeable damages.

2. Our liability for damages under the Product Liability Act or other mandatory legal provisions remains unaffected by the above provisions. The same applies to damage resulting from injury to life, limb, or health.

11. Limitation Period

1. The mutual claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise specified below.

2. Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims for defects is three years from the transfer of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period also applies accordingly to claims arising from defects of title, whereby the statutory limitation period for third-party claims for surrender of property (§ 438 (1) No. 1 BGB) remains unaffected; Furthermore, claims arising from defects of title shall in no case become time-barred as long as the third party can still assert the right against us, in particular in the absence of a limitation period.

3. The limitation periods under sales law, including the above extension, apply – to the extent permitted by law – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) shall apply, unless the application of the limitation periods under sales law leads to a longer limitation period in individual cases.

12. Choice of Law, Place of Jurisdiction, Miscellaneous

1. These PO Terms and the contractual relationship between us and the seller shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

2. If the seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive—including international—place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in 23795 Bad Segeberg. The same applies if the seller is an entrepreneur within the meaning of § 14 BGB (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 GTC or a prior individual agreement or at the seller's general place of jurisdiction. Overriding statutory provisions, in particular those relating to exclusive jurisdiction, remain unaffected.

3. If parts of the above GTC are invalid or waived, the validity of the remaining provisions shall remain unaffected. The seller is obliged, together with us, to replace invalid provisions with provisions that are legally valid and correspond as closely as possible to the invalid provisions in terms of their meaning, purpose, and economic outcome.