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Terms and Conditions of Sale

of Schneider Prototyping GmbH (”Schneider”)

Version: July 2016

1. Scope

1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to any current and future sale, manufacture, service, lease and other procurement contracts of Schneider with companies (according to section 310 para. 1 German Civil Code) as clients and also for the commencement of negotiations and changes concerning the contract. Any other respective agreements shall be effective only if made in writing.

1.2 Client expresses his consent to these GTC by placing or confirming an order. Schneider hereby objects to any possibly existing General Terms and Conditions of Client.  

1.3 Prices of Schneider are calculated on the basis of these GTC. However, these GTC shall be part of a declaration of intent of Schneider in case Client objects to these GTC but accepts the delivery or service of Schneider or in case Schneider delivers without reservation in spite of knowing contradicting or differing terms of Client.

1.4 Clauses of these GTC shall not apply, in case deviating individual agreements were made and contracted. The remaining clauses shall not be affected.

2. Offers, Orders, Conclusion of contract

2.1 Offers by Schneider are not binding. Contracts are only concluded upon written order confirmation by Schneider which determines subject, scope, price and terms of delivery and excludes any verbal agreement.

2.2 In case no written contract is concluded, the subject-matter of contract is specified exclusively by Schneider’s written offer. Any and all declarations exceeding Schneider’s written offer and expanding or changing the offer’s content shall be binding for Schneider only if confirmed in writing by Schneider’s authorized representatives. This also applies to subsequent declarations relating to the contract. Verbal declarations made by Schneider shall be binding only if made by Schneider´s authorized representatives within their power of representation and only if both Parties agree in waiving the written form clause. This provision shall not apply if determined otherwise in these GTC.

2.3 Should Client not accept the offer without prejudice within one week (= placing of order), Schneider may alter or withdraw the offer at any time.

2.4 Once Schneider accepts an order by Client under deviation and Client does not agree with such deviation he shall grant Schneider a reasonable time period for acceptance without reservation. 10 calendar days are deemed to be reasonable. Client’s order is deemed to be rejected only upon expiry of such time period.

2.5  Schneider is producing interactively at German and international sites. Planning and execution of production projects within the interconnected production plants is performed exclusively by the Schneider Production Planning.

3. Prices, Payments, Maturity, Default of Payment

3.1 Unless indicated otherwise, prices are net prices Ex works exclusive of packaging and insurance plus the statutory value added tax (VAT).

3.2 Schneider shall be bound to the prices for a time period of up to four months as from conclusion of contract. However, Schneider is entitled to price increases if Schneider can prove that costs on which price calculation is based at the time of conclusion of contract increased since that date. The price increase shall be effected to the extent of cost increase.

3.3 Unless otherwise agreed upon individually, payments shall be made without deduction, Payment of purchase price shall be made net without deduction within 14 days as of invoice date, unless agreed upon otherwise.

3.4 Schneider may assign and transfer its claims resulting from the supply relationship to third parties.

3.5 All payments have to be made exclusively to A. B. S. Global Factoring AG, Postfach 14 01 03, D-65208 Wiesbaden with discharging effect. We have assigned our present and future claims from our business relationships. We have also transferred our retention of title to A. B. S. Global Factoring AG.

3.6 Offsetting by the customer with counterclaims is excluded, unless the counterclaims are undisputed from Schneider side or legally established or if they are based on the same contract.

3.7 Upon expiry of term as defined in section 3.3. sentence 2, Schneider may demand, irrespective of any claim for damages, default interests in the amount of 9 % above the European Central Bank basic rate and € 3.00 for each dunning letter. Schneider reserves the right to prove and enforce any higher damage caused by default. However, Client is entitled to provide evidence that Schneider did not incur any or did incur a considerably smaller damage due to default of payment.

3.8 If Client fall is in default of payment Schneider has the right to withdraw from the contract after expiry of a reasonable grace period for payment. If Schneider has any additional claims for damages and Schneider takes back the contractual goods, the Parties are in agreement that Schneider pays the ordinary sale value of the goods at the time of taking-back. A sworn and publically appointed expert shall determine the ordinary sale value, if Client wishes so. However, such request must be made directly upon taking-back of goods. Generally, all existing receivables shall fall due immediately if Client defaults with any payment obligations vis-à-vis Schneider.

3.9 Client shall bear any and all costs incurred by taking-back and exploiting of goods. Without evidence, exploitation costs shall amount to 5% of the ordinary sale value. Such costs shall be fixed at a higher or lower value, should Schneider be able to prove higher costs or Client to prove lower costs.

3.10 Schneider shall be entitled to withdraw from any additional contract for delivery, should Client be in default with payments from any contract for delivery, after expiry of a reasonable grace period for payment.

4. Delivery, Scope of delivery, Delivery time

4.1 Within a reasonable scope, Schneider shall be entitled to partial deliveries and partial services at any time, unless partial deliveries or partial services are of no interest for client.

4.2 In a reasonable extent and with an according price adjustment, Schneider is entitled to customary increase or decrease of deliveries over-delivery or short-delivery.

4.3 Delivery times shall be fixed so as to enable probable compliance. Unless agreed upon otherwise, delivery terms shall not commence for Schneider before the date of last execution of written contracts, otherwise at the date of Schneider’s acknowledgement letter, however never earlier than after clarification of any and all performance details or after receipt of all declarations, specifications and evidences of Client and not before receipt of advance payment in case Client is obliged to pre-payment.

4.4 Should alteration of contract be agreed upon after execution of contract or should Client request additional or altered services, the agreed delivery deadline shall be postponed and date of delivery shall be changed by a time period adequate for appropriate reorganization, even if Schneider does not point this fact out expressly during receipt of service alteration.

4.5 Changes of structure or form, differences in colour as well as changes of the scope of delivery by Schneider shall be reserved during delivery term as long as those changes and differences are reasonable for Client taking into account the interests of Schneider. The signs and figures used by Schneider for designating the order or the ordered purchase item shall not constitute any rights devolved upon purchaser.

4.6 Delivery deadlines are extended and delivery dates are postponed by the time period which is passing.

4.6.1 while Client does not or not entirely comply with its contractual duties;

4.6.2 while impediments are existing for Schneider or its supplier's due to circumstances or events beyond Schneider’s or its supplier's control, which are not due to organizational faults and provided that Schneider’s or supplier's performance is impeded not only to a minor extent, such as labour disputes, violent events, war or other cases of Force Majeure;

4.6.3 while Client is in considerable default with any contractual payment or with any payment due from earlier business transactions. In such cases, Schneider shall not be liable for any performance default; Schneider may, at its own discretion, postpone delivery for the time of impediment or withdraw entirely or partially from contract.

4.7 Schneider’s delivery (performance) is deemed to be as complete as soon as Schneider has rendered any and all of its contractual obligations.

4.8 Client shall be entitled to demand delivery six weeks after any non-binding delivery term or non-binding delivery deadline. Default shall exist as from receipt of demand.

4.9 In case that Client wishes to withdraw from contract and/or to claim damages instead of service, Schneider must be given a reasonable time for delivery after expiry of the six-week term.

4.10 Should Schneider be obliged to deliver any item that Schneider produced as reserve or is keeping in store, the additional term in terms of Sections 281, 323 German Civil Code shall be of 12 working days and for supply of any material entities manufactured and installed by Schneider the additional term shall be of at least one fifth of the delivery time originally stipulated and planned. 

4.11 Schneider shall not be liable if damage had occurred even upon delivery in due time. Furthermore the terms of liability of Section 9 shall apply.

5. Acceptance

5.1 Formal acceptance shall be made if expressly agreed upon or if required by law or authority directions. Acceptance shall be at Client’s expense, unless otherwise agreed upon.

5.2 If the date of delivery , installation or putting into operation has been changed upon Client’s wish or request, Schneider may demand advance payment in the amount of invoice for delivery or service less the costs saved by such change. In addition, Schneider shall be entitled to demand storage costs in the amount of 0,2 % of the invoice value per month.

5.3 Should Client refuse acceptance or delay acceptance for reasons Client is responsible for, section 5.2 shall apply accordingly. Schneider’s rights based on delay of acceptance by Client shall not be affected.

6. Dispatch, Transportation, Insurance, Passing of Risk.

6.1 Packaging, route of transportation and means of transportation shall be at Schneider’s discretion, unless agreed upon otherwise. Any packaging, if so agreed, shall be as customary in commerce and against payment.

6.2  Packaging material made available on lease or rent basis shall be sent back free of charge by Client within one month. Loss or damage of leased or rented packaging material shall be, if not received by Schneider, irrespective of responsibility, at Client’s expense.

6.3 For any leased or rented packaging which is not returned within the agreed time, Schneider is entitled to charge the net cost price for new packaging after putting Client in default. Upon charging, the rented or leased packaging is deemed to be as sold to Client. However, ownership of such packaging shall transfer to Client only upon payment of such invoice.

6.4 Leased or rented packaging shall not be used for other than the contractual purposes and shall not be used to hold other products than those furnished by Schneider. They are destined exclusively for the transport of the delivered goods. Texts and labels written or printed on the packaging material shall not be removed.

6.5 Schneider shall not be obliged to insure the delivered goods. If Client does request so, Schneider will insure the goods against theft, breakage, transport, fire and damage and other insurable risks at Client’s expense.

6.6 Passing of risk

6.6.1 If no other agreements have been made shipping will be done “Ex works” at the Client´s expense and risk. Risk passes to Client upon loading of delivery goods onto the transport vehicle, even if Schneider is obliged to perform other services, such as e.g. commissioning of fright carrier at Client’s expense and similar services. This provision shall apply also to partial delivery.
6.6.2  Should delivery be delayed due to circumstances in Client’s responsibility, risk shall pass to Client at the day Schneider is prepared to deliver; however, Schneider is obliged to contract insurance if Client wishes so and pays for it in advance.

6.7 Irrespective of the rights in Section 8, Client is obliged to accept furnished goods even if the goods show marginal damages.

7. Retention of Title

7.1 The goods delivered by Schneider remain Schneider’s property until all claims deriving from the business relationship with the Client have been paid in full. This provision shall also apply in the event that purchase price for certain delivery goods as determined by Client has been paid. In case of current accounts the goods subject to Schneider’s title of ownership serve to secure the open account balance which Schneider is entitled to. If delivered goods are being mixed or composed with other goods, Client assigns, already by now, its propriety rights or co-ownership rights in the mixed goods or in the new object and shall hold said objects in safe custody for Schneider.

7.2 If the value of securities exceeds Schneider´s outstanding account to be secured by more than 20%, Schneider shall be obliged to release of securities at Client's request and choice.

7.3 Client shall be entitled to sell the reserved goods only within ordinary course of business and only if Client is not in payment default, provided that claims resulting from reselling the goods are assigned to Schneider in accordance with provisions hereinafter. Client shall not be entitled to any other disposals of reserved goods. Resale shall be equal to installation of reserved goods in real estate or to use of reserved goods for performance of other duties under material contracts or labour and material contracts by Client. Goods supplied shall be reserved to personal use; in case of delivery to any re-selling companies, goods shall be reserved to resale within ordinary business to inland end users, unless authorization was requested from and expressly granted by Schneider for each individual case prior to resale.

7.4 Client assigns its claims from resale of reserved goods including any and all ancillary rights to Schneider in advance. Schneider, already by now, accepts this assignment. These claims shall serve Schneider for securing of its total outstanding account to the same extent as the reserved goods. Should Client sell reserved goods together with other goods, which are not being sold by Schneider, Client assigns to Schneider the claims from resale in proportion of invoice value of reserved goods to invoice value of the other goods; Schneider accepts assignment. In the event of sale of goods, in which Schneider is holding any co-ownership portion, Client assigns to Schneider portion of co-ownership equal to its outstanding aaccount. Schneider accepts assignment.

7.5 Client shall be entitled to collect claims from resale, unless Schneider did revoke authorization for collection. Upon Schneider's request, Client shall be obliged to inform its customers immediately about the assignment to Schneider and to provide Schneider with any and all information and documents necessary for collection. In any case Client shall not be entitled to any further assignment of claim. This also applies to factoring transactions, unless Schneider gave its prior consent.

7.6 In any case Client is not entitled to pledge or assign as security. Client shall inform Schneider immediately if any third party - plans to or already has accessed the reserved goods or the assigned claims – pledging or other detriment. Should the third party not be able to settle court and out-of-court costs of a claim in accordance with section 771 German Code of Civil Proceedings, Client shall be liable for any loss incurred by Schneider.

7.7 The Client undertakes to handle the goods subject to Schneider’s title of ownership with care during the period of retention. Reserved goods shall be available to inspection by Schneider or its agents at any time. Upon Schneider's request, Schneider shall be informed about the respective location. During the period of retention, Client shall bear the risk of accidental loss or damage. The entire outstanding debt shall be due, also insofar as bills of exchange with later maturity are existing, should Client fail to comply with its payment duties and such other duties as resulting from retention of ownership, should Client suspend its payments or in case of insolvency or bankruptcy proceedings.

7.8 In the event of non-compliance with contract by Client, in particular in the event of payment default or non-compliance with duties as under 7.3 to 7.7, Schneider shall be entitled to withdraw from contract and to demand return of goods. In case of default with payments a reasonable grace period for payment has to be set for the Client before withdrawing from the contract.

7.9 Any costs resulting from repossession of purchase object shall be at Client's expense.

8. Liability for Defects and Notice of Defects

8.1 Client's warranty claims are subject to the condition that Client properly fulfilled this investigation and complaint obligations under Section 377 German Trade Code. Notice of apparent defects shall be given immediately in writing or via fax, however, not later than one weeks after receipt of goods and prior to resale to any third party. Any other defects are to be notified no later than one week after discovery in written form. Failure to comply with this provision shall exclude enforcement of warranty claims. Dispatch of notification letter in due time shall suffice for compliance with deadline. Client shall bear entire burden of proving claim preconditions, in particular of proving the defect, of detecting the defect in due time and of complying with notification period for defects. 

8.2 In case of warranty, client’s rights are limited to the right of subsequent performance. Subsequent performance will be done, at Schneider’s discretion, by elimination of defect or delivery of goods free from defects. In case of delivery of goods free from defects the delivery deadlines of the original contract shall apply. In case of elimination of defects Schneider is obliged to bear all necessary expenses, in particular for transport, labour and material costs insofar as they are not increased by transfer to a place different from place of performance.

8.3 In case Schneider is not willing or not able to perform elimination of defects or a delivery free from defects, in case Schneider refuses either or either is delayed beyond the reasonable deadline for reasons of Schneider’s responsibility or in case the subsequent performance fails for other reasons, Client has the right to either withdraw from the contract or to have the purchase price reduced by a reasonable amount. However, Client shall not be entitled to withdrawal for minor non-compliance with contract, in particular for insignificant defects.

8.4 The same warranty as for the original delivery or service shall apply to elimination of defects or delivery of goods free from defects. 

8.5 Should Client receive faulty installation instructions, Schneider's responsibility shall be limited to delivery of faultless installation instructions and this only if the faulty instructions prevent the proper installation.

8.6 Condition warranties in the terms of German Civil Code are principally not given to Client; manufacturer's warranties shall not be affected by this provision. 

8.7 Warranty claims are statute-barred according to Section 9.7.

8.8 Furthermore, Schneider is liable for damages because of defects only in accordance with Section 9.

9. Liability and Prescription

9.1 Schneider is liable in accordance with the statutory provisions if the Client asserts claims for damages resulting from intention and gross negligence of Schneider’s legal representatives or chief executives (Leitende Angestellte). However, the liability for damages is limited to the foreseeable, typically occurring damage unless in case of deliberate breach of contract.

9.2 In case of culpable breach of an essential contractual obligation Schneider is liable in accordance with the statutory provisions, provided that the liability for damages is limited to the foreseeable, typically occurring damage.

9.3 Furthermore, Schneider is liable in accordance with the statutory provisions for malicious silence with regard to a defect and in case of condition warranties in accordance with section 443 German Civil Code (BGB).

9.4 Limitations of liability as described above shall not apply to Client's claims from product liability. Limitations of liability shall neither apply in case of culpable injury of life, body or health. In case Client sells the purchased good unchanged or after processing, mixing or blending with other goods, he exempts Schneider inter se from any claims of damages by third parties in case Client is responsible for the defect causing the liability. 

9.5 Insofar as the damage incurred is covered by Client's insurance against any such damage (excluding fixed-sum insurance), Schneider shall be liable only for possible Client's disadvantages due to such damage, e.g. higher insurance contributions or disadvantageous interest rates until adjustment of damage by insurance. Insofar as the insurance does not or not entirely stand for such damage, Schneider shall be liable only up to the amount of total policy value.

9.6 The limitations of liability according to section 9 shall also apply for any possible liability of the legal representatives, chief executives (Leitende Angestellte) and other employees employed in the performance of Schneider’s obligation towards the client of Schneider.

9.7 Claims by the Client because of defects become statute-barred after one year beginning from the delivery of the respective goods. This shall not be valid in case of intent or malicious silence with regard to a defect, in case of deviat­ing content of a warranty furnished by Schneider in accordance with Section 443 of the Ger­man Civil Code (BGB), and in case of goods which were used for a building in line with its usual manner of use and caused the defectiveness of such building. The period of limitation of one year stipulated in sentence 1 does not apply to claims for dam­ages because of defects if such defects result from acts of gross negligence by Schneider’s legal representatives or chief executives (Leitende Angestellte) or in case of personal injury. The one-year period of limitation for claims because of defects does also not apply to defects concerning a right in rem or another third-party right entered in the land register; in these cases, the period of limitation shall be three years. The statu­tory provisions concerning the statutory limitation of possible claims under a right of recourse in ac­cordance with Section 479 of the German Civil Code (BGB) and the limitation and preclusive periods under the German Product Liability Act shall remain unaf­fected.

9.8 As far as not otherwise laid down above, any liability shall be excluded.

10. Industrial Property Rights

In the event that the Client directs by special instructions, data, documents, drafts, or drawings the manufacturing process of the goods to be delivered by Schneider, the Client is responsible that the rights of third parties, e.g. patents, registered designs, or other industrial rights and copyrights are not violated thereof. The Client exempts Schneider from all claims of third parties resulting from a possible violation.

11. Place of performance, Legal Venue, Applicable Law

11.1 Place of performance for delivery and payment shall be Bad Kreuznach.

11.2 Place of jurisdiction shall be Bad Kreuznach. This shall also apply to lawsuits filed under the summary proceedings based on bills of exchange, promissory notes and checks regardless of the respective place of payment. Furthermore, Schneider is entitled to file a lawsuit against Client at his place of general jurisdiction.

11.3 The law of the Federal Republic of Germany shall govern excluding the law of the UN Convention on Contracts for the International Sale of Goods (CISG).  

11.4 The invalidity of any provision or the unenforceability of these GTC, e.g., in the event of a delivery to a foreign country, does not affect the validity of the other provisions. The Client is obliged to agree to a valid and enforceable provision proposed by Schneider that comes as close as possible to the purpose of the replaced provision.