General Terms and Conditions
1 Important Information
1.1 All deliveries of SHP are subject to the following terms of delivery only. In as much as there are gaps in these terms of delivery, the provisions of law shall apply. Customers' general terms and conditions of business which deviate from the following terms of delivery or the provisions of law are herewith expressly rejected. They will also not be accepted by SHP in the execution of a contract, in particular by the delivery of goods.
1.2 SHP shall only be bound to an offer through a written order acknowledgement, which may take the form of an invoice accompanying the goods.
1.3 SHP shall not check the correctness of the information provided by the customer upon which the offer or order confirmation is based.
1.4 Unless the customer informs SHP in writing that only a specific make and design of a product is desired, SHP will be free to deliver make and design of that product which is technologically most advanced.
1.5 Unless otherwise previously confirmed in writing, SHP shall deliver products within the tolerances admissible under the prevailing technical standards in force in Germany, in particular DIN, VDE etc.
2 Delivery – Delivery time
2.1 Unless otherwise agreed upon in writing, deliveries are effected 'ex factory'/'ex works' pursuant to the Incoterms of 2000.
2.2 Only the confirmed time of delivery by SHP is binding upon the parties.
2.3 The commencement of a delivery period requires timely receipt of all documents, material and information from the customer necessary for the execution of the contract, as well as all authorizations and permits which may be required and which are to be submitted by the customer to SHP with the necessary contents and/or of the quality agreed upon.
2.4 Force majeure, strikes, uproars, authoritative actions and other forces beyond the control of SHP shall exempt SHP from its delivery obligations for the duration of this disturbance, and in the extent that these obligations are affected by these forces. This applies also in the case SHP has been in default at the time these impossibilities arose.
The purchasing merchant's possible claims for delay or default of contract are excluded in cases of slight negligence by SHP's legal representatives, agents or employees.
4 Passing of the Risk - Shipment
4.1 If pick-up has been agreed, the customer becomes liable for its accidental destruction or depreciation upon receipt of the notification that the product is ready for pick-up.
4.2 If the product is to be shipped, the risk (4.1) shall pass at that point of time at which SHP has delivered the product to the person in charge of shipping it. In case the delivery is delayed for reasons within the customer's responsibility, the risk shall pass to the customer upon receipt of the notification that the product is ready for shipment.
4.3 If SHP selects the mode of shipment, the route of transportation or the person in charge of shipping the product, SHP shall only be liable for its mistake in selection.
4.4 Unless otherwise agreed upon in writing, the customer has to insure the shipment at the expenses of his own. In this respect SHP is acting neither on behalf of itself nor in behalf of the customer.
5 Inspection and Rejection of Goods
5.1 Upon receipt, each shipment shall be inspected for defects, damages and completeness. All complaints shall be promptly reported to SHP in writing.
5.2 In case of damage to the goods while in transit, a purchasing merchant must obtain a written damage report form the carrier, and, after immediate consultation with SHP, have an insurance adjuster issue a certificate of damage, if SHP requires it.
For defects in a product SHP's warranty obligation shall, at its choice, consist of subsequent improvement or delivery of a replacement within a period of twelve (12) months. The customer has no right to remedy a defect himself and claim reimbursement of the costs thus incurred by him. If the subsequent improvement or replacement chosen by SHP should fail, the customer may assert other statutory warranty rights.
7 Compensatory Damages
SHP will pay damages within the legal limits in the case of wilful or grossly negligent
bad performance of contract,
breach of duty at the time of contracting,
breach of contractual duties to ensure safety and fitness, contractual duties of care as well as contractual collateral duties.
In the event that the breach of a contractual duty by SHP jeopardizes the attainment of the contract purpose or poses a concrete danger to the life or health of the customer, SHP will, in the case of slight negligence as defined by German contract law, assume liability for insurable damages up to an amount which could be expected in the normal course of events. In the case of slight negligence, SHP will not indemnify the customer for damages from operational stoppage and machine breakdowns or for loss of profit. Contractual penalties or liquidated damages the customer may have to pay to a third party are in any case excluded.
The foregoing liability of SHP extends to the legal representatives, agents or employees of SHP and is final. Any further claims for damages are excluded. The foregoing liability includes SHP's liability in tort but does not apply to claims covered by the German Product Liability Act of 15 December 1989.
8.1 Prices are 'ex factory'/'ex works' pursuant to the Incoterms of 2000. In addition, the current VAT will be charged.
8.2 Prices include neither taxes, fees, contributions or other charges, nor ancillary costs such as packaging, insurance, freight, cartage, installation and putting-into-operation costs etc.
9.1 Payments are due immediately and without any deductions upon receipt of the invoice. Deductions of cash discounts or rebates are always subject to prior written approval.
9.2 Payments shall be effected by bank remittance free of charge to SHP's banking department. Checks or bills of exchange will be accepted on account of performance only. The acceptance of bills of exchange is subject to prior written approval and does not constitute any deferment of payment, unless expressly confirmed otherwise.
10 Reservation of Title
10.1 SHP retains title to all products delivered until all previous and present contract obligations, negotiable instrument claims, as well as all past and present debts have been satisfied in full. If, in connection with a payment, a liability for SHP arises due to any negotiable instrument transaction, then the reservation of title stands until SHP is absolved or excluded from all obligations.
10.2 The customer may use the products delivered within the scope of his ordinary and proper course of business prior to full payment of the aforementioned obligations, claims and debts (10.3), unless a prohibition of assignment exists with third parties for the future claims already assigned to SHP as set forth in 11.3. Pledging of security interests or liens, in as much as SHP's rights are affected, are subject to SHP's prior written consent.
10.3 As further security for SHP's claims described in 10.1, the customer will assign immediately to SHP those claims - including claims from open bills or current account - which may arise against his contracting partners or third parties from the resale of the original or modified products. SHP accepts this assignment of claims, which consists of its interest in the products sold by its customer to third parties. SHP's interest is the invoice amount (including VAT) of its products sold to the customer.
10.4 The customer may collect the assigned future claims outlined in 10.3 within the scope of his ordinary and proper course of business. This authorization of collecting assigned future claims includes the direct debiting of claims, always provided, however, that the customer ensures by prior agreement with his bank that the amounts received are exempt from the bank's lien and that the customer is thus able to meet his obligation to transfer his proceeds to SHP at any time. This authorization of collecting assigned future claims expires as soon as the customer defaults in the payment of his liabilities to SHP. Upon the expiration of such authorization, SHP is entitled to disclose the assigned claims and demand any and all information and documentation from the customer required for the assertion of these claims.
10.5 As long as the title to the property delivered has not passed from SHP (10.1), any improvement of or additions to these products will be considered to be in part those of SHP, without, however, obligating it in any way or manner. SHP thus acquires by accession a co-ownership in the property. The amount of this co-ownership is determined by the ratio between the value of the products subject to the reservation of title used for the additions to the property and the value of the property at the time of accession. The value added due to the accession remains untouched and shall be due to the customer. The customer's purchase lien to the products subject to the reservation of title extends to the co-ownership of SHP. The customer shall be free to dispose of SHP's co-ownership subject to the foregoing stipulations.
10.6 Should the actual value of the securities existing for SHP exceed the secured claims of SHP by more than 10% - be it solely on the basis of this reservation-of-title stipulation or together with other securities - SHP shall be obliged to release additional securities of its own choice upon the customer's request.
11 Pledges and Liens
11.1 The customer and SHP agree that SHP has a lien on the customer's property which comes into SHP's possession in connection with the execution of the contract for all present and future claims SHP may have against the customer under the same legal relationship. The same applies to the customer's expectancy rights for acquisition of the property title.
11.2 The customer and SHP further agree that SHP has a lien on all present and future claims the customer may have against SHP arising in all present and future contracts.
11.3 If the customer has failed to fulfill his obligations to pay, then SHP may, after actual notification of default to the customer's last known address, sell privately the customer's pledged property to cover all costs and expenses.
11.4 Should the actual value of the securities existing for SHP exceed the claims of SHP by more than 10% - be it solely on the basis of this lien stipulation or in connection with other securities - SHP shall be obliged to release additional securities of its own choice upon the customer's request.
12 Setoff - Retention
12.1 The customer's right of setoff is limited to uncontested or non-appealable claims only.
12.2 The rights of retention pursuant to Section 273 of the German Civil Code (BGB) and Sections 369 et seq. of the German Commercial Code (HGB) shall be due to the customer only in as much as the claim substantiating these rights is based on the same legal relationship as the claim of SHP. This limitation does not apply if the customer's counterclaims are uncontested or non-appealable. The customer shall not be entitled to satisfy his claim pursuant to Section 371 of the German Commercial Code (HGB).
13 Competent Courts
13.1 If the customer is a merchant, or has no general place of jurisdiction in Germany, Hanau am Main in the State of Hessen, Germany, shall be considered the competent courts for all legal actions that may arise between the parties, including legal proceedings over checks and bills of exchange.
13.2 However, SHP shall be entitled to recourse in any court having jurisdiction as to the respective legal action under the law of the Federal Republic of Germany or the law of the country in which the customer has his registered place of business.
14.1 Place of performance for the customer's payments shall be SHP's registered place of business.
14.2 Should any clause, paragraph, sub-paragraph, sentence or phrase of these General Terms of Delivery be or become invalid or unenforceable, then such clause, paragraph, sub-paragraph, sentence or phrase shall be deemed separated from the rest of these General Terms of Delivery, which shall remain in full force and effect.
14.3 These General Terms of Delivery and any agreement between the parties shall be governed by and construed in accordance with the law of the Federal Republic of Germany, excluding the UN Convention on the International Sale of Goods of 11 April 1980 (CISG) and the Law of Conflict of Laws. Any reference to other legal systems is excluded.