Standard Terms & Conditions of Sklarz Abwasser- u. Umwelttechnik GmbH, Schwarzhausen
Updated in 2021
All our sales, maintenance, repair and other service contracts with regard to businessmen, legal entities or special assets under public law are exclusively governed by the following STANDARD TERMS. We do not accept any of our CUSTOMERS' standard terms and conditions to the contrary, unless expressly otherwise agreed in writing in isolated cases.
Effectiveness of contracts
Contract orders need to be confirmed in writing by SKLARZ to be legally effective.
The CUSTOMER and SKLARZ are bound by their quotation/order for a period of two weeks; the CUSTOMER can accept a quotation by SKLARZ only within two weeks of receipt thereof. Acceptance after the expiry of said period is deemed a new quotation.
Right of modification reserved
(1) SKLARZ shall have the right to modify the product by way of technical improvement in so far as there is no impact on its usefulness.
(2) In case of product modifications caused by the CUSTOMER after conclusion of the contract, SKLARZ shall be entitled to modify the affected contractual terms and conditions accordingly, especially in terms of price and time of performance.
(3) In case of price increases in excess of 10% due to cost increases, the CUSTOMER shall have the right to rescind the contract. SKLARZ agrees to furnish proof of such cost increase on the CUSTOMER's request.
Prices and payment
(1) Quoted prices are ex works or warehouse, strictly net, exclusive of statutory value-added tax, in euros, exclusive of packaging and shipment.
The delivery is made by carriage forward. The CUSTOMER shall pay transport, packaging, insurance charges and postages. SKLARZ will assume the disposal of the packaging in case of returns postage prepaid.
(2) Invoices shall be due without deduction on the date of receipt.
(3) SKLARZ provides a discount of 2% for payment within 7 days after receipt of invoice. The CUSTOMER is under the obligation to provide proof of the date of receipt if intending to claim related rights. Payment shall be deemed to have been effectively made only as of the day SKLARZ can draw on the invoiced amount.
(4) In case of delayed payment, SKLARZ shall be entitled to apply default interest at a rate of 14% p.a. SKLARZ's right to claim higher damages shall not be affected thereby. The customer is expressly entitled to furnish evidence proving that SKLARZ has incurred no damage or substantially lower damage by such default.
Set-off and retention
The CUSTOMER shall only be allowed to perform a set-off or exercise a right of retention against SKLARZ for undisputed or legally effective counterclaims of the CUSTOMER.
Time of delivery
(1) Delivery times or dates stated by SKLARZ in offers or quotations are approximate estimates without commitment. They are given by SKLARZ after close examination and appropriate adjustments to CUSTOMER requests.
(2) Agreed delivery periods start to run on the day of final commercial and technical clarification of the order details.
(3) Delivery times will be extended by a reasonable period if the CUSTOMER fails to fulfil its required cooperation duties in due time or if contract amendments are agreed upon special CUSTOMER requests. SKLARZ reserves the right to perform its contractual obligations during an additional cure period of four weeks.
(4) Delays in delivery due to unforeseeable events occurring without any fault of SKLARZ, including but not limited to storms, strikes or lockouts, traffic disruptions, power failures, or defaults in delivery or other delays incurred during the production or shipping of the product will suspend the delivery time for the duration of such event, reasonably extended by an extra period for enabling SKLARZ to resume operations.
(1) If the CUSTOMER refuses to accept the product or rectification after the expiry of an appropriate cure period granted to the CUSTOMER, or expressly declares in advance its intention to refuse such acceptance, SKLARZ may rescind the contract or claim damages for non-performance. Art. 323 (exercise of rights of rescission) of BGB (German Civil Code) shall not be affected thereby.
(2) If such delay in acceptance exceeds a period of two weeks, the CUSTOMER shall have to pay the warehouse cost incurred. SKLARZ can claim warehouse cost for each weak or part thereof in the amount of 1% of the contract value, but no more than 5% of the contract value, and in any case no less than €50, unless SKLARZ furnishes proof of higher warehouse costs or the CUSTOMER proves that no warehouse cost at all or a lower amount was incurred. SKLARZ may at any time call in a forwarder for warehousing services.
(3) SKLARZ can claim damages for delayed acceptance in the amount of 25% of the contract value, unless SKLARZ proves higher damages. The CUSTOMER shall be entitled to furnish proof showing that lower damages or no damages at all were incurred.
Rescission by SKLARZ
(1) SKLARZ shall be released from its obligation to make the delivery if the manufacturer or sub-supplier finally ceased the production of the ordered products, if final non-delivery by SKLARZ is caused by force majeure, and if SKLARZ is unable, in any of the two foregoing cases, to purchase the ordered products under reasonably acceptable conditions, provided that said events occurred after submission of the binding quotation or after contract conclusion and provided that SKLARZ is not responsible for such non-delivery. SKLARZ will inform the CUSTOMER immediately on any such occurrences.
(2) In addition, SKLARZ shall be entitled to rescind the contract if the CUSTOMER makes false statements on any relevant facts related to its credit standing, or if a petition for insolvency or bankruptcy proceedings is filed against the CUSTOMER's assets, unless the CUSTOMER immediately makes a advance payment or gives bankruptcy-proof security.
(3) SKLARZ shall have the right to refuse performance of its contractual obligation if it becomes apparent after the order is placed that its claim for adequate consideration is at risk In such case, SKLARZ can rescind the contract, unless the CUSTOMER gives security or pays in advance within a period of one week.
(4) In case of rescission and receipt of the returned product by SKLARZ, SKLARZ shall be entitled to claim compensation for expenses, transferral for use, and loss of value:
* for expenses actually and properly incurred from the contract such as postages, transport, installation and legal expenses
* for loss of value and transferral for use in the amount of 25% during the first six-month period after hand-over, 40% during the second six-month period after hand-over, 60% during the second year after hand-over, 70% during the third year after hand-over, unless SKLARZ proves higher damages or expenses or the CUSTOMER proves that lower or no damages or expenses at all were incurred.
Reservation of title
(1) The products from SKLARZ shall remain the property of SKLARZ until full payment of the related invoice amounts and of all existing claims under the related contract. This reservation of title shall also continue to exist until fulfilment of all other claims held by SKLARZ against the CUSTOMER in connection with the products, e. g. due to repairs, maintenance work or substitute deliveries.
(2) It is expressly prohibited to transfer ownership in pledge or by way of security until passage of title. Resales are allowed only in normal business on the condition that all claims resulting from such resales to third parties are herewith and right now assigned by the CUSTOMER to SKLARZ in the amount of our claims against the CUSTOMER. This shall apply regardless of whether or not the products are resold without or after being processed or converted, bonded, mixed or blended, and regardless of whether they are resold to one buyer or to several buyers. Should any products from SKLARZ be sold together with other goods not owned by SKLARZ, the assignment of such claim for the purchase price shall be limited to the proportional value of the products owned by SKLARZ. SKLARZ hereby accepts said assignment. The CUSTOMER is entitled to collect the claim assigned to SKLARZ.
(3) Should any SKLARZ products be processed, such processing is performed for SKLARZ to the extent of the ratio between the value of the product and the value of the new article as of the time of processing; SKLARZ grants the CUSTOMER the expectant right to the appropriate extent.
(4) The CUSTOMER shall keep the products for SKLARZ until passage of title and handle them carefully; the CUSTOMER is obligated to insure the products, at its own cost, against fire, water and other likely risks on the basis of their replacement value. Should the CUSTOMER be in default of payment or commit any significant breach of its obligations related to this reservation of title, SKLARZ shall have the right to claim restitution of the product. The CUSTOMER shall bear all and any expenses of such restitution. Taking back the product shall not be construed as rescinding the contract. Sales proceeds, if any, are set off against our claims.
(5) SKLARZ shall be informed immediately on any pledging, seizure or other third-party disposition. In case of suspension of payments, the CUSTOMER is under the obligation to disclose the assigned claims and respective debtors, to provide all information required for claim collection, to provide the documents associated therewith, and to inform the debtor on the assignment.
(6) SKLARZ remains obligated, on the CUSTOMER’s request, to release the securities properly held by SKLARZ to the same extent as the value of such securities exceeds the underlying claims by more than 20%; SKLARZ may decide at its own discretion on which securities to release.
(1) Should the product be defective or lack warranted qualities or become defective within the warranty period as a result of manufacturing or material defects, SKLARZ shall, at its own choice, either replace the product (substitute delivery) or remedy the product (rectification) to the exclusion of any further warranty claims. SKLARZ shall be entitled to up to two substitute deliveries or rectifications. Should the two substitute deliveries or rectifications fail, the CUSTOMER may rescind the contract or claim a reduction of the purchase price. With the exception of lack of warranted qualities, claims for damages shall be limited to damages related to the defect and to the consequential losses covered by such warranty.
(2) This warranty does not include wear & tear, improper use or installation, or defects from repair attempts made by the CUSTOMER or any third party. If the subject matter of the contract is a new development, application of a new technology, or special manufacture using innovative elements, SKLARZ shall be entitled to perform four substitute deliveries or rectifications for design and manufacturing defects.
(3) If and to the extent that the CUSTOMER asserts warranty claims, the scope of warranty shall be exclusively limited to the scope given in the warranty statement or in the written certificates handed over to the CUSTOMER.
(4) The warranty period shall be one year from acceptance or hand-over.
(5) Obvious defects shall be communicated in writing immediately, i.e. no later than 7 days after hand-over, delivery or acceptance.
(6) The period fixed for the shift in the burden of proof in Art. 476 BGB (German Civil Code) is reduced to 3 months, unless the products or work supplies were not or not significantly employed or used for their intended purpose after hand-over, delivery or acceptance within such period.
(1) SKLARZ's liability under any contract, for breach of pre-contract duties or secondary duties, or for tortious acts shall be limited to wilful misconduct and acts of gross negligence, unless in the event of damage to life, body or health, and limited to culpable violation of cardinal obligations and lack of warranted qualities.
(2) The liability for slightly negligent breach of cardinal obligations shall be limited to 25% of the contract value.
(3) The foregoing liability limitations shall also apply to the personal liability of agents and servants.
(4) Liability under the German Product Liability Act shall not be affected thereby.
Passing of risk
The risks of accidental loss and accidental deterioration shall pass to the CUSTOMER when the product is handed over or when the product is given to the first carrier for shipment (post office, forwarder or courier).
This shall also apply when transport is taken over by SKLARZ.
Place of performance, jurisdiction, choice of law
(1) The place of performance for all contractual and legal claims including warranty claims is Schwarzhausen/Thuringia (Germany).
(2) The venue for all disputes shall lie in the competent legal court having territorial jurisdiction for Schwarzhausen.
(3) German law shall apply exclusively. Alternatively, if and to the extent that German law is not applicable, the UN Convention on Contracts for the International Sale of Goods shall apply to international contracts for the sale of goods.
Written form requirement
All agreements and letters of intent including but not limited to modifications and amendments of the contracts and to these STANDARD TERMS inclusive of the present provision shall be done in writing.
Should any of the standard terms or provisions in the STANDARD TEMRS be or become ineffective, the remaining standard terms or provisions in the STANDARD TERMS will not be affected thereby. The Parties hereto agree to replace any such ineffective standard term or provision by an understanding that is as close as possible to the economic intent and fulfils the legal requirements.