Terms and Conditions (“Terms”) as of August 2023

Schulz-Electronic GmbH
Dr.-Rudolf-Eberle-Straße 2
76534 Baden-Baden
Germany

1. Application and Form

All our past, present and future offers, orders, products and services (hereinafter referred to as the “Service”) are provided subject exclusively to our Terms, which can be accessed on our website. The Terms form part of all contracts made with us; they apply even if not specifically referenced.

Our Terms only apply vis-à-vis traders [“Unternehmer”] (German Civil Code [BGB] § 14, § 310). Our Terms apply exclusively. The customer’s terms and conditions do not apply, even if we do not object to them separately. They do not become part of the contract even if the order is accepted or filled without reservation.

Individual agreements made with the customer in individual cases (including side agreements, additions and amendments) shall in any case take precedence over these Terms. Unless proven otherwise, the substance of such agreements is determined by a written contract and/or our written confirmation.

In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC).

Any modifications and additions hereto as well as legally significant representations from the customer (e.g., objection, setting a deadline, rescission or price reduction) that are not based on an individual agreement must be made in text form (e.g., regular mail, email, fax) unless the written form is explicitly agreed upon. This also applies to a waiver of the text form requirement. Statutory form requirements are not affected hereby.

2. Contract Formation and Service

Our offers are non-binding unless expressly stated otherwise. We can accept the customer’s purchase orders within 10 business days. There is no contract until we confirm the order or start providing the Service, whichever comes first, even if the order is placed orally.

Agreements entered into orally and by phone are only legally valid if we confirm them in text form. Obvious mistakes or printing, spelling, arithmetical or costing errors are not binding and do not give grounds for claims. We extend no contractual guarantees [“Garantie”] except those we explicitly identify as such in writing.

The scope and subject matter of the Service is exclusively governed by the order confirmation or, if the order is filled immediately, the delivery note. If the order confirmation or delivery note contains changes to the customer’s purchase order, the customer is deemed to have consented to them if the customer unconditionally accepts the service and does not object in writing immediately. If the customer changes or adds to an already confirmed order, we are entitled to adjust prices and extend Service deadlines.

Our offers are based on information provided by the customer, without knowledge of the customer’s circumstances or requirements.

Information, samples, specimens or illustrations in catalogs, price lists or other advertising materials are approximations only (e.g., weights, dimensions, values in use, allowable loads, tolerances or technical data) unless exact conformity is necessary for the Service to be used for the contracted purpose. Any reference to technical standards is only a description of our Service, not a guarantee of certain characteristics.

If we manufacture samples or a prototype that are/is approved by the customer, our Service will be deemed contractually compliant if it conforms to the samples or prototype. This also applies if we produce the Service based on plans that we have prepared and the customer has approved.

The Service is deemed to be in compliance with promises or guarantees even if the actual Service deviates 10% from such promises or guarantees (tolerance).

Absent an agreement to the contrary, we are not liable to provide instruction or advice. If we do provide advice or technical information outside of the agreed-upon scope of Service, the advice or information will be provided without any liability whatsoever.

While in the process of providing the Service, if we realize that the Service cannot be provided due to technical or process reliability constraints or that specific Service requirements have to be modified, we will notify the customer and suggest alternatives wherever possible (change request). We will provide the customer with a supplementary offer in this regard. The customer must notify us whether they consent to the change; notification must be given without undue delay, but no later than within 10 business days of receiving the offer. Either party can rescind the contract if no agreement is reached. The customer must reimburse all the expenses that we have incurred up to that point. The customer is expressly prohibited from claiming damages as a result.

Any documentation (such as manuals) that we may maintain for certain Services will be available to the customer digitally on data storage media or as a free download on our website.

Goods supplied for inspection If we supply goods to the customer so that they can inspect them or choose among them, the purchase contract will only become binding upon approval by the customer. Approval is deemed given if the customer, within 10 days of receiving the goods, (a) does not object to the purchase in writing or (b) does not return the delivered goods. The customer is liable for any accidental loss or deterioration from the time that the goods are handed over.

3. Prices & Payment

Absent an agreement to the contrary, our current prices shall apply plus VAT at the statutory rate applicable on the date of providing the Service. All prices are ex warehouse and do not include additional services such as packaging, transportation insurance, training, travel costs and other expenses.

If we incur additional costs because we have been given incomplete information, unclear objectives or unclear tasks which the customer fails to complete or correct despite being requested to do so, these additional costs will be charged separately based on our current prices as they may change from time to time.

Unless otherwise agreed, invoices are due immediately without discounts. In determining timeliness, payment is deemed to be made when our account is credited. A default in payment automatically voids any rebates, prompt payment discounts and other incentives; interest amounting to 9 percentage points above the base interest rate (German Civil Code [BGB] § 288) will also become due. This is without prejudice to the ability to charge merchants interest starting on the due date (German Commercial Code [HGB] § 353).

If the agreed-upon Service deadline is more than four months after the contract conclusion, we reserve the right to reasonably adjust our prices with one month’s prior notice if costs increase or decrease after the contract conclusion for reasons including, but not limited to, the conclusion of collective bargaining agreements, changes in production costs, or changes in market prices for comparable products. We will provide evidence of the factors that led to the increase at the customer’s request. The customer can rescind the contract if the price increase is more than 20%.

We can demand advance payment and/or exercise a right of retention with respect to further Services in the event of a default in payment or reasonable doubt as to the customer’s ability to perform.

The customer may only exercise a right of retention or set-off if their claims against us are undisputed, upheld by final and absolute judgment or based on defects.

Proof of export

If a customer located outside the Federal Republic of Germany (foreign territory buyer) or their authorized agent collects Services from us and transports or ships them to foreign territory, the customer must provide us with the proof of export required for tax purposes. If this proof is not provided, the customer will have to pay value-added tax at the rate applica- ble within the Federal Republic of Germany on the invoice amount for the Service.

4. Delivery, Passage of Risk

Absent an agreement to the contrary, delivery will be EXW (ex works Incoterms 2020®) ex warehouse, which is also the place of performance for the Service and any defect remedy.

We are allowed to provide the Service early, in parts, or in amounts that exceed or fall short of the contracted amounts as long as this is not unreasonable.

The delivery deadline is deemed to be met if the carrier picks up the shipment for shipping within that period; we assume no liability for carrier delays. We will insure the Service and/or shipping at the customer’s prior instructions and expense. Any obligation to accept deliveries is not affected by contrary regulations or the absence of permits and approvals. Service deadlines or other deadlines promised in writing or orally are only approximate unless we have agreed to a fixed Service deadline in writing. Service deadlines begin upon receipt of the order confirmation, the full, complete and nondefective provision of customer-supplied materials, but not before all technical and commercial questions have been resolved or any required advance payment has been credited.

We will comply with Service deadlines subject to timely delivery by our own suppliers. We are not liable for faults of our suppliers; any claims for damages against our suppliers will be assigned to the customer. After a non-binding Service deadline expires, the customer may only rescind the contract after they have fixed in writing an additional period of at least 30 days for us to perform our obligations and warns us that they will refuse Service if we do not perform within this additional period.

Force majeure events, government actions, and other circumstances for which we are not at fault – for example, strikes, operational upsets, inability to procure permits, difficulties in procuring materials, civil unrest, embargoes, travel warnings issued by the German Federal Foreign Office – that render our Service or that of our suppliers impracticable or impossible other than temporarily, exempt us from our obligation to perform for the duration of their effects. We are not liable for impossibility or delays due to such events. The customer may ask us to state within 2 weeks whether we wish to rescind the contract or perform within a fair and reasonable period. We may rescind part or all of the contract if we cannot be reasonably expected to perform for the above reasons; this does not entitle the customer to damages. In this case, the customer is exempted from their obligation to render counter-performance. The customer may rescind the contract after fixing an additional reasonable period of time for us to perform our obligations if they can no longer be reasonably expected to accept the Service for the above reasons. We will provide notification of delays regardless of their cause.

The statutory provisions determine when we are in default in delivery. However, the customer must issue a reminder in any event. In the event of a delay in delivery due to slight negligence, our liability for liquidated damages for each completed week of delay is 0.5% up to a maximum of 5% of the value of the goods of the Service affected by the delay. We may furnish proof that the damages are smaller. In all other regards, our liability is governed by the liability provisions of these Terms.

If the customer defaults on taking delivery, fails to comply with one of their duties to cooperate or our delivery is delayed for other reasons attributable to the customer, we may demand compensation for the resulting damage including additional expenses (e.g., storage costs). If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to claim compensation for the resulting damages including additional expenses (e.g., storage costs). The right to claim and prove that storage costs are higher, lower or non-existent remains reserved.

5. Retention of Title

We reserve all rights – including, but not limited to, copyrights, ownership rights and other intellectual property rights – in and to all specimens, tools, specifications, models, plans, data, drawings, cost estimates, tangible and intangible information, and similar items provided to the customer in electronic or any other form. Any reproduction or release to third parties is prohibited.

We retain title to the goods until the settlement of all accounts receivable (including any and all outstanding balances on running accounts) that the customer owes us now or in the future on any legal grounds whatsoever. The service may not be pledged or assigned as security. The customer shall notify us immediately in writing if third parties seize the goods and if a petition for bankruptcy proceedings is made.

The law gives us the right to rescind the contract and require the customer to immediately return the goods to us or, if applicable, assign their rights of restoration against third parties if the customer breaches the contract. The demand for return does not constitute a notice of rescission.

Until the time of revocation, the customer is authorized to resell and/or process the Service that is subject to retention of title in the ordinary course of business. The following applies:

The retention of title extends to the full value of the products resulting from the processing, intermixing or combining of our goods, with us considered to be the manufacturer. If third parties retain title in this process, we will acquire coownership in proportion to the invoice values of the goods. In all other regards, the resulting product will be treated the same as the goods provided under the retention of title clause (see above) The customer hereby assigns to us by way of security any and all claims against third parties arising from the resale of the goods or the product in total or in the amount of any co-ownership share. We accept the assignment. The customer retains the right to collect the claim in addition to us. We agree not to collect the claim as long as the customer meets their payment obligations, their ability to perform is not impaired and we have not made a retention of title claim. If this is the case, however, we may demand notification and surrender of all necessary information in order to collect the claims ourselves and revoke the customer’s authorization to further sell and process the goods subject to retention of title. Should the realizable value of the security furnished by the customer exceed our claims by more than 10%, we will release security at our option at the customer’s request.

6. Defects

If the customer is a merchant, they must carefully inspect the received Service as soon as reasonably possible after receipt. We must be notified of any defects in writing without unreasonable delay (“notice of defects”). In the case of goods intended for assembly, mounting or installation, an inspection must in any case be carried out immediately before processing. Damages sustained in transit or during shipping must be documented vis-à-vis the carrier. German Commercial Code [HGB] § 377 applies in all other regards. If no notice is given, the Service will be deemed to be free from defects and in conformity with the purchase order unless the defect was not detectable during the inspection. Notice of such defects must be given immediately after discovering them. Our liability for defects is based primarily on the agreement reached regarding the characteristics and the presumed use of the goods (including accessories and instructions). The following are deemed to be an agreement on characteristics for this purpose: all product descriptions and manufacturer’s specifications that are the subject of the individual contract or that we disclosed to the public (including, without limitation, in catalogs or on our website) at the time the contract was formed. Absent an agreement on characteristics, the provisions of law must be used to determine whether there is a defect (German Civil Code [BGB] § 434(3)). Any negotiation on our part regarding notices of defects does not constitute a waiver of the defense that the notices were late, unsubstantiated or otherwise insufficient. Damage reduction measures do not constitute an acknowledgment of defects.

We do not guarantee compliance with any special regulations that apply to imports, exports or the customer’s business, nor do we guarantee that any necessary permits or approvals have been obtained. The Service may only be used in the country for which it has been ordered. Absent an agreement to the contrary, the customer bears the responsibility, liability and costs of any exports. With regard to exports, the customer agrees to comply with legal provisions (e.g., dual use), including, but not limited to, the provisions of German foreign trade law. Liability for infringements of intellectual property rights outside Germany will only be assumed under a separate written agreement. Differences in quality or scope attributable to variations in the materials or changes made to the Service to keep up with technical progress with regard to construction, design, dimensions, weight or color are permitted within the customary industry tolerances, provided (a) this does not restrict the usability of the Service for the contracted purpose, (b) no contractual guarantee exists, and (c) the customer can be reasonably expected to accept the change(s) and/or difference(s) in light of an objective assessment of all circumstances.

We warrant that the software will substantially conform to the functions described in its associated documentation, provided that the software is used in accordance with the agreed-upon prerequisites and operating conditions (e.g., operating system). We extend no warranty that the program functions of the customer’s selected software will meet the customer’s requirements or that the software will be compatible with any of the customer’s other existing software programs. The customer will report faults without unreasonable delay, providing enough detail where possible (presenting the error messages and describing the steps taken) so we can begin correcting the errors in a targeted manner. Where possible, the customer will immediately provide us, without limitation, with all the necessary electronic information and documents, and, if possible, in a form that allows the fault to be reproduced. If reasonable for the customer, the defect may also be remedied by providing an alternate solution, a workaround or a software update.

If the Service is defective, we will discharge our obligation to cure the defect by, at our option, repairing the defective Service or replacing it with a non-defective Service. We can refuse a type of cure or the entire cure if it is impracticable for us. The customer must give us the requisite time, opportunity and access to cure the defect; failing that, we will be exempted from any and all liability for the resultant consequences. Subsequent performance shall not include the removal, dismantling or disassembly of the defective goods or the installation, attachment or assembly of non-defective goods if we were not originally obligated to perform such services; this shall not affect the customer’s claims for reimbursement of corresponding costs (“removal and assembly costs”). If we decide to provide a replacement, we may stipulate that it can only be provided concurrently with the return of the defective Service. Replaced parts become our property.

We shall bear the expenses (e.g., transportation costs)necessary to cure the defect to the extent they have not been increased by transporting the Service to a location other than the place of performance. This applies in particular in the event that the goods were taken abroad. If we fail to cure the defect or refuse to perform either type of cure, the customer may, after fixing a reasonable additional period for us to perform our obligations, rescind the contract, reduce the compensation and/or claim damages.

The customer is entitled to remedy the defect themselves, or to have it remedied by third parties, and to demand reimbursement of the necessary expenses from us, solely in emergencies that jeopardize operating safety, or to avert unreasonably severe damage or loss, in which case we must be notified immediately. The right of self-help does not exist if we would be entitled to refuse the cure according to the provisions of law.

If the customer or a third party performs a repair without first giving us an opportunity to cure the defect, we will assume no liability whatsoever for the resultant consequences. The same applies to any modifications made to the Service, the replacement of parts or the use of consumable materials that do not conform to the original specifications without our prior consent, unless the defect is not caused thereby.

We do not extend any warranties in cases of inappropriate or improper use or repairs, improper assembly or placement into service by the customer or third parties, failure to follow processing guidelines or user manuals, natural wear and tear, improper or negligent handling or storage, improper preventive maintenance or care, inappropriate supplies or chemical, electrochemical, electrical or environmental influences, unless we are at fault for such cases. The customer is liable for any unjustified notices of defects if the defect’s cause lies within the customer’s area of responsibility and the customer acted at least negligently in failing to recognize this fact. We will charge our current list prices for any expenses not attributable to us under our liability for defects.

The customer may not bring any claims that go beyond these Terms or are not governed by these Terms due to a defect.

7. Liability

We are liable in accordance with the statutory provisions unless otherwise stipulated in these Terms. We are liable (1) to pay damages for willful misconduct and gross negligence wherever fault-based liability applies; (2) for nondisclosure of defects with the intent to deceive; for claims under the German Product Liability Act [ProdHaftG]; or in the event of the assumption of a guarantee of certain characteristics. Absent any laws stipulating liability limitations, our liability for slight negligence is limited to damages arising from injury to life, limb and health and for damages arising from the breach of a material contractual obligation. A material contractual obligation is an obligation (a) whose satisfaction is essential to the proper performance of the contract and (b) upon whose satisfaction the customer does and may consistently rely. In the event of a breach of a material contractual obligation, our liability will be limited to the payment of foreseeable, typical damages. The liability limitations also apply to breaches of duty by or for the benefit of individuals for whom we are vicariously liable by law.

In the event of a delay in performance due to slight negligence, our liability for liquidated damages for each completed week of delay is 0.5% up to a maximum of 5% of the amount invoiced for the Service affected by the delay. We may furnish proof that the damages are smaller.

The customer must maintain insurance in the scope customary for their industry and structure (e.g., without limitation, business interruption insurance). Contributory fault by the customer reduces our liability accordingly. The customer is responsible for regularly backing up their data. We are not liable for any damages or losses arising from data loss due to negligence if the customer failed to ensure that the data could be restored, with reasonable effort and cost, from data material kept in machine-readable form.

8. Statute of Limitations

The general limitation period for claims arising from material defects and defects of title is one year or, in the case of repair orders, 6 months from handover/delivery. The limitation period begins to run upon acceptance if the contracting parties have agreed to acceptance. This is without prejudice to special statutory provisions on limitation, including, but not limited to, German Civil Code [BGB] § 438(1) nos. 1. and 2., (3), German Civil Code [BGB] § 444, German Civil Code [BGB] § 634a (1) no. 2, German Civil Code [BGB] § 639.

The limitation period for the customer’s claims for damages pursuant to 7 para. 2 sentence 1 of these Terms and in the event of injury to life, limb and health expires exclusively as set out in statutory limitation periods. The above limitation periods also apply to the customer’s contractual and non-contractual claims for damages based on a defect in the service unless the application of the regular statutory limitation period (German Civil Code [BGB] § 195 and § 199) would lead to a shorter limitation period in individual cases.

9. Liability Disclaimer and Limitation

Where liability is limited to the foreseeable damages or losses which are typical for the contract, our liability for each damage or loss occurrence is limited to EUR 100,000.00 for property damage and EUR 200,000.00 for other types of damage or loss; the total liability for all damages and losses within a given calendar year is limited to twice these amounts. This limitation does not apply if liability is unlimited by law or if the damages or losses are covered by the general liability insurance policy.

The customer shall notify us in writing if using our Service could result in the customer sustaining damages or losses in excess of this liability limitation. In this case, we will make the customer an offer to take out additional insurance to cover the additional risk.

10. Property Rights, Non-Disclosure, Data Protection

If the customer provides us with works (e.g., logos, photos, advertising copy etc.) to be integrated or processed with our Service, the customer will be responsible for ensuring that they have all the rights needed for the Service to be provided. In the absence of a written agreement to the contrary, the customer is responsible for the legality of the Service, including, without limitation, with respect to trademark, copyright and competition law. We will notify the customer of any legal risks that come to our attention.

In the exceptional case where we assume the legal responsibility for third-party property rights under a written agreement, the following will apply: If using the Service infringes on domestic industrial property rights or copyrights, we will, at our expense and option, either procure a license for the customer, modify the Service to be non-infringing, or replace the Service with a non-infringing Service. If this is impracticable for us, the customer can assert all statutory rights. This obligation only exists if the customer notifies us of asserted claims without undue delay, refuses to acknowledge the infringement and we retain all options to defend ourselves. If the customer stops using the Service to reduce damages or for other good reasons, the customer must advise the third party that this suspension of use does not constitute an acknowledgment of infringement.

The customer may not assert claims for infringements which are their responsibility or which are caused by the customer’s special requirements, by a use which we could not foresee, or by the customer changing the Service or using it with services which we did not supply. The customer hereby holds us harmless from any and all third-party claims and will pay reasonable court costs, our reasonable attorneys’ fees and the third party’s reasonable attorneys’ fees as demanded by third parties due to the violation of third-party rights.

The customer will keep all the contents of the contract strictly confidential, including, but not limited to, prices, discounts, knowledge and other trade secrets, and will refrain from disclosing or otherwise making available to third parties any information, documentation, drawings or other documents without our explicit written approval. This does not, however, apply to contents that have entered the public domain without any violation of the non-disclosure obligation. The customer will impose the same non-disclosure obligation on their employees and associate companies and on third parties to whom the contents have to be disclosed.

The customer consents to our processing their data (communication details, responsible employees, nature and extent of the customer’s purchase orders, etc.) for contract administration and execution. We may also use the data to inform the customer about our products and services if such products and services are typically used in connection with the Service that the customer has purchased from us.

Software Absent an agreement to the contrary, upon the provision and payment of the software, we will grant the customer a non-exclusive, non-transferable contractual right to use the software on one computer at their company for their own business purposes.

We retain all other rights in and to the software including related materials (source code, updates, documentation) and any copies made thereof, even if the customer makes changes to it or combines it with their own software or that of a third party. The customer is not permitted to grant sub-licenses.

The customer is not permitted to reverse-engineer or decompile the software or cause the software to be reverse-engineered or decompiled except and to the extent expressly contracted for or permitted by law. Software provided for testing purposes may only be used for testing purposes and not for business purposes.

11. Final Provisions

These Terms also apply to affiliates and subsidiaries of the customer within the meaning of German Stock Corporation Act § 15 [AktG]. The customer must impose these Terms on their affiliated companies. The customer may not assign to third parties any rights granted in this contract without our consent. German Commercial Code [HGB] § 354 a remains unaffected thereby.

Our assembly and service terms govern any work, repairs or assembly activities that we may perform at the customer’s request in connection with the Service. Placing an order constitutes acknowledgment of said terms. The German wording controls in cases of doubt if the contract or the Terms are drawn up in more than one language. German law applies unless national law inevitably conflicts with it.

Absent an agreement to the contrary and irrespective of the agreed-upon Incoterm, the place of our registered office is the place of performance, also with respect to warranty claims. If the customer is a merchant or a legal entity under public law, our seat is the exclusive place of jurisdiction for all disputes arising directly or indirectly under the contractual relationship. However, we may bring an action at the place of performance or at the general place of jurisdiction of the customer. The foregoing does not affect overriding provisions of law, including, without limitation, those regarding exclusive jurisdictions. The Zurich Arbitration Court has jurisdiction over all legal disputes with customers outside the EU arising out of or in relation to the contract in accordance with the Swiss Rules of International Arbitration of the Swiss Chamber of Commerce. The court of arbitration consists of two arbitrators. The seat of arbitration is Zurich, Switzerland. The language of the arbitration shall be the contract language.

Important!

Please follow our instructions regarding damages sustained in transit very carefully. Non-compliance with procedural requirements exempts the transportation insurance company from their liability for claims. If damages are sustained in transit, you should safeguard your claims by involving the carriers’ agents – as defined in their relevant provisions – in the damage assessment process early on, i.e.:

EXTERNALLY VISIBLE DAMAGES OR LOSSES:

Must be documented prior to shipment acceptance by making a note on the waybill. For rail shipments: a damage report must also be requested from the railway company.
For postal shipments: the postal service should acknowledge any damage in writing before damaged packages etc. are accepted.

DAMAGES OR LOSSES THAT ARE NOT IMMEDIATELY VISIBLE

Damages or losses not discovered until the shipment is unpacked: the carrier must be notified in writing without delay. The notification deadlines are as follows:

a) Postal service: immediately (within 24 hours at the latest) after delivery by the carrier
b) Railway company: no later than 7 days after delivery by the carrier
c) Freight forwarder transports in connection with railway transports: no later than 4 days after delivery by the carrier

We recommend submitting the necessary information to the carriers as follows:

Account Office ______________
(or Postal Office, Freight Forwarder, Trucking Company).

The shipment ___________
(waybill, number of packages, signature information)
sent from __________ to __________
arrived here on __________ (consignor __________)

and was accepted without any objections because it had no externally visible damage.
Opening the shipment, however, revealed that the contents had been damaged and/or stolen in transit. We hold you
responsible for the resulting damages. If you deem it necessary, you can evaluate the damage for yourself at

______________________________
(name, city, street, street number).

In addition, we ask that you notify the sender at our company and provide the delivery note and/or invoice number.
Please attach the documents listed in the above information sheet to your complaint.