1 Validity of the conditions (1)
The deliveries and services of Schokoma GmbH are made exclusively on the basis of these terms and conditions. These shall therefore also apply to all future business relationships, even if they are not expressly agreed again. These conditions shall be deemed accepted at the latest upon receipt of the goods or services. Counter-confirmations by the customer with reference to their own terms and conditions of business or purchase are hereby rejected.
(2) Deviations from these terms and conditions are only effective if Schokoma GmbH confirms them in writing.
2 Scope of delivery, offer and conclusion of contract
(1) The offers of Schokoma GmbH are subject to change and non-binding.
(2) The written order confirmation from Schokoma GmbH shall be authoritative for the scope of delivery and all agreements. In the case of an offer from Schokoma GmbH with a time commitment and timely acceptance, the offer is decisive, provided that no timely order confirmation is available.
(3) All additions, amendments or ancillary agreements require the written confirmation of Schokoma GmbH to be effective.
(4) The employees of Schokoma GmbH are not authorised to expressly or tacitly waive the written form requirements of these terms and conditions or to make verbal side agreements.
(5) The documents belonging to the offer, such as illustrations, drawings, weight and dimensions and performance data are only approximate, unless they are expressly designated as binding.
(6) Protective devices are only included in the scope of delivery if this has been expressly agreed in detail.
3 Plans and documents
(1) Schokoma GmbH reserves the right of ownership and copyright to cost estimates, drawings and other documents; they may not be made accessible to third parties.
(2) Schokoma GmbH undertakes to disclose plans and documents designated as confidential by the customer to third parties only with the customer’s consent. The customer guarantees that no property rights of third parties are infringed by handing over these documents to Schokoma GmbH. Schokoma GmbH is not obliged to check this with the customer. In the event of recourse by a proprietor of property rights, the customer shall indemnify Schokoma GmbH against all claims.
(3) Technical documentation for used machines shall be provided to the customer in copy form, if available. If the manufacturer of the used machine sold is no longer able to issue technical documentation, Schokoma GmbH is not obliged to provide the customer with new technical documentation.
4 Price and payment
(1) Unless otherwise agreed, prices are ex works including loading, but excluding packaging. All prices are net prices. In addition, the respective statutory value added tax is to be paid.
(2) In the absence of a special agreement, payment shall be made in cash and without any deductions to the paying agent of Schokoma GmbH, namely
a) for used machines/spare parts
50% deposit after receipt of the order confirmation
50% upon written notification of readiness for dispatch.
b) for new machines
50% after receipt of the order confirmation
40% upon notification of readiness for dispatch
10% within 10 working days after delivery
(3) The customer shall be in default if it fails to settle due and invoiced amounts within two weeks of the invoice date. The invoice date is not included in the calculation of the deadline. From the date of default, the customer shall pay default interest at a rate of 1% above the applicable discount rate of the Deutsche Bundesbank, but at least 5% interest. Schokoma GmbH reserves the right to assert further damages caused by the delay.
(4) Schokoma GmbH is entitled, despite any provisions to the contrary on the part of the customer, to first offset payments against the customer’s older liabilities and will inform the customer of the type of offsetting that has taken place. If costs and interest have already been incurred, Schokoma GmbH is entitled to offset the payment first against the costs, then against the interest, and finally against the principal.
(5) Bills of exchange or cheques are only accepted on account of performance. Discount, taxes and expenses shall be borne by the customer.
(6) A payment shall only be deemed to have been made once Schokoma GmbH has access to the amount. In the case of cheques, payment is deemed to have been made only when the cheque is cashed.
(7) If Schokoma GmbH becomes aware of circumstances that call into question the creditworthiness of the customer, in particular in the event of imminent suspension of payments or non-payment of a cheque, Schokoma GmbH shall be entitled, in addition to its statutory rights, to refuse performance until the customer has provided sufficient security.
(8) The customer shall only be entitled to offset, withhold payment or unilaterally reduce the purchase price, even if complaints or counterclaims have been asserted, if the counterclaims have been legally established or are undisputed.
(9) In the event of advance performance, Schokoma GmbH shall be entitled to insure the delivered machines at the expense of the customer against theft, breakage, transport, fire and water damage, as well as other insurable risks, to cover their value. All claims against the insurance company for compensation due to damage or loss of the machines are hereby assigned by the customer to Schokoma GmbH.
5 Delivery
(1) Delivery dates or deadlines are only binding if they are confirmed in writing by Schokoma GmbH. In this case, the period shall commence upon dispatch of the order confirmation or, in the case of a time-limited offer from Schokoma GmbH, upon timely receipt of the customer’s declaration of acceptance, but in no case before the customer has provided the necessary documents, approvals and releases or before receipt of an agreed down payment.
(2) The delivery period shall be deemed to have been met if, by the end of the delivery period, the delivery item has left the factory or notification has been given that it is ready for dispatch.
(3) The delivery period shall be extended appropriately in the event of measures taken in the context of industrial disputes, in particular strikes or lockouts, as well as in the event of unforeseen obstacles beyond the control of Schokoma GmbH, insofar as such obstacles can be proven to have a significant influence on the completion or delivery of the delivery item. This also applies if these circumstances occur with subcontractors of Schokoma GmbH.
(4) If the customer incurs damage due to a delay caused by Schokoma GmbH’s own fault, it shall be entitled to claim compensation for the delay, to the exclusion of further claims. This amounts to 1/2% for each full week, but in total no more than 5% of the value of the total delivery.
(5) If dispatch is delayed at the request of the customer or due to circumstances for which the customer is responsible, the customer shall be charged for the costs incurred for storage, beginning one month after notification of readiness for dispatch, but at least 1/2% of the value of the stored machines for each month if stored at the Schokoma GmbH factory.
However, Schokoma GmbH is entitled to set the customer a deadline for acceptance, after which it may freely dispose of the delivery item. In this case, the customer shall be supplied with a reasonably extended deadline.
(6) The customer may only invoke non-compliance with the delivery deadline if it has fulfilled its contractual obligations.
6 Transfer of risk and acceptance
(1) The risk shall pass to the customer at the latest upon dispatch of the delivery items, even if partial deliveries are made or Schokoma GmbH has assumed other services, e.g., shipping costs or delivery or installation. At the request of the customer, the shipment will be insured at its expense against theft, breakage, transport, fire and water damage, as well as other insurable risks.
(2) If dispatch is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the time of notification of readiness for dispatch.
(3) Delivered items, even if they have minor defects, shall be accepted by the customer without prejudice to the rights arising from §§ 8 and 9 of these conditions.
(4) Schokoma GmbH is entitled to make partial deliveries and partial services at any time.
7 Retention of title
(1) The delivered items remain the property of Schokoma GmbH as goods subject to retention of title until the purchase price has been paid and all claims arising from the business relationship and claims still to arise in connection with the purchased item have been settled. The inclusion of individual claims in a current account or determining the balance of an account and their recognition do not cancel the retention of title. In the event of default of payment by the customer, Schokoma GmbH shall be entitled to take back the goods subject to retention of title after issuing a reminder, and the customer shall be obliged to surrender them. The return of the reserved goods shall be at the customer’s expense. The repossession of the reserved goods by Schokoma GmbH and their seizure by Schokoma GmbH shall not be deemed a withdrawal from the contract.
(2) If goods subject to retention of title are processed by the buyer into a new movable item, the processing shall be carried out on behalf of Schokoma GmbH without any obligation on the part of Schokoma GmbH; the new item shall become the property of Schokoma GmbH. In the event of processing together with goods not belonging to Schokoma GmbH, Schokoma GmbH shall acquire co-ownership of the new item in accordance with the ratio of the value of the goods subject to retention of title to the other goods at the time of processing. If goods subject to retention of title are combined with goods not belonging to Schokoma GmbH pursuant to § 947 of the German Civil Code (BGB), Schokoma GmbH shall become co-owner in accordance with the statutory provisions. If the customer acquires sole ownership through combination, it shall already transfer co-ownership to Schokoma GmbH in accordance with the ratio of the value of the goods subject to retention of title to the other goods at the time of combination. In such cases, the customer shall store the item owned or co-owned by Schokoma GmbH, which shall also be deemed to be goods subject to retention of title within the meaning of the following provisions, free of charge.
(3) If goods subject to retention of title are sold by the customer, alone or together with goods not belonging to Schokoma GmbH, the customer hereby assigns the claims arising from the resale in the amount of the value of the goods subject to retention of title with all ancillary rights and priority over the remainder; Schokoma GmbH accepts the assignment. If the resold goods subject to retention of title are co-owned by Schokoma GmbH, the assignment of the claims shall extend to the amount corresponding to the share value of Schokoma GmbH in the co-ownership. Paragraph 1, sentence 1 of these terms and conditions shall apply mutatis mutandis to the extended retention of title; the advance assignment pursuant to paragraph 3, sentences 1 and 2 shall also extend to the balance claim.
(4) If goods subject to retention of title are installed by the customer as an essential component in the property of a third party, the customer hereby assigns to Schokoma GmbH any claims for remuneration against the third party or the party concerned in the amount of the value of the goods subject to retention of title, including all ancillary rights, including the right to grant a security mortgage, with priority over the rest; Schokoma GmbH accepts the assignment. Paragraph 3 sentences 2 and 3 of these terms and conditions apply accordingly.
(5) If goods subject to retention of title are installed by the customer as an essential component in the customer’s own property, the customer hereby assigns the claims arising from the commercial sale of the property or property rights in the amount of the value of the goods subject to retention of title with all ancillary rights and with priority over the remainder; Schokoma GmbH accepts the assignment. Paragraph 3 sentences 2 and 3 of these terms and conditions apply accordingly.
(6) The customer is only entitled and authorised to resell the goods subject to retention of title for use or installation in the ordinary course of business and only with the proviso that the claims within the meaning of paragraphs 3, 4 and 5 of these terms and conditions are actually transferred to Schokoma GmbH. The customer is not entitled to dispose of the goods subject to retention of title in any other way, in particular by pledging them or assigning them as security.
(7) Schokoma GmbH authorises the customer, subject to revocation, to collect the claims assigned in accordance with §§ 3, 4 and 5 of these terms and conditions. Schokoma GmbH will not make use of its own right of collection as long as the customer fulfils its payment obligations, including to third parties. At the request of Schokoma GmbH, the customer must name the debtors of the assigned claims and notify them of the assignment; Schokoma GmbH is authorised to notify the debtors of the assignment itself at any time.
(8) The customer must inform Schokoma GmbH immediately of any third-party foreclosure measures against the reserved goods or the assigned claims by handing over the documents necessary for the objection.
(9) The right to resell, use or install the goods subject to retention of title and the authorisation to collect the assigned claims shall expire upon cessation of payment, application for or opening of bankruptcy proceedings, judicial or extrajudicial settlement proceedings; in the event of a cheque or bill of exchange protest, the direct debit authorisation shall also expire.
(10) If the value of the securities granted exceeds the claims by more than 10%, Schokoma GmbH shall be obliged to reassign or release them at its discretion. Upon settlement of all claims of Schokoma GmbH arising from the business relationship, ownership of the goods subject to retention of title and the assigned claims shall pass to the customer.
8 Warranty for new machines
(1) Schokoma GmbH guarantees that new machines are free from manufacturing and material defects; the warranty period is 2 years and begins with delivery to the customer.
(2) The warranty period begins with the delivery date.
(3) The customer must notify Schokoma GmbH in writing of any recognisable defects without delay, but no later than one week after receipt of the delivery item (exclusion period). Defects which cannot be objectively discovered within this period, even after careful examination, must be reported to the seller in writing without delay, but no later than one week after discovery.
(4) If the delivery item is not insignificantly defective or if it lacks assured characteristics or if it becomes defective within the warranty period due to manufacturing or material defects, Schokoma GmbH shall deliver a replacement or rectify the defect. In the event of a replacement delivery, Schokoma GmbH may demand that the defective delivery item be returned to it by the customer carriage paid. The customer shall also bear the freight costs of the return shipment. In the event of rectification, Schokoma GmbH may demand that either the defective delivery item be sent by the customer carriage paid for rectification and subsequent return to Schokoma GmbH, or that the defective delivery item be kept available by the customer and a technician sent to the customer to carry out the rectification. Of the repair costs, Schokoma GmbH shall bear the costs of the replacement part and labour, while the customer shall bear the costs of shipping (transport to and from the repair location) and the travel expenses of the technician(s), including accommodation and meals.
(5) If the rectification fails within a reasonable period of time, the customer may, at its discretion, demand a reduction in the remuneration or cancellation of the contract.
(6) No warranty is assumed for unsuitable or improper use, incorrect assembly or commissioning by the customer or third parties, natural wear and tear, incorrect or negligent handling, use of unsuitable operating materials, replacement materials, defective construction work, unsuitable building ground, chemical, electrochemical, electromagnetic or electrical influences. If such circumstances exist, the customer must prove to Schokoma GmbH that the defect is not attributable to this circumstance.
(7) Warranty claims against Schokoma GmbH are only available to the direct customer and are not assignable.
(8) The above paragraphs conclusively contain the warranty for new machines and exclude other warranty claims of any kind. This does not apply to claims for damages arising from quality guarantees that are intended to protect the customer against the risk of consequential damage caused by defects.
9 Warranty for used machines
(1) Unless otherwise expressly agreed in writing, used machines are sold as spare parts to the exclusion of any warranty.
(2) If a used machine is sold in working order within the meaning of these terms and conditions, this means that the machine has only been electrically tested and is only capable of running under idle conditions. In no case is a guarantee granted.
(3) Insofar as a warranty is provided for used machines in individual cases, this warranty is limited to the work carried out by Schokoma GmbH, such as overhauling the machine or replacing parts. Spare parts shall be new parts, used parts or reproductions manufactured by Schokoma GmbH, at the discretion of Schokoma GmbH. No liability shall be accepted for material defects, fatigue and wear and tear of materials, tools or tool parts that could not be detected during the overhaul. In all other respects, the provisions of § 8 of these conditions apply accordingly.
10 Limitation of liability
Claims for damages arising from positive breach of contract, negligence at the time of conclusion of the contract and tort are excluded both against the seller and against its vicarious agents, unless there is evidence of wilful misconduct or gross negligence.
11 Right of withdrawal of the customer and other liability of Schokoma GmbH
(1) The customer may only withdraw from the contract if the entire service becomes definitively impossible for Schokoma GmbH before the transfer of risk. The same applies in the event of inability of Schokoma GmbH. The customer may also withdraw from the contract if, in the case of an order for similar items, the execution of part of the delivery becomes impossible in terms of quantity and the customer has a legitimate interest in rejecting a partial delivery; if this is not the case, the customer may reduce the consideration accordingly.
(2) If Schokoma GmbH is in default with delivery and the customer sets a reasonable grace period with the express declaration that it will refuse performance after expiry of this period, and if the grace period is not observed, the customer shall only be entitled to withdraw from the contract.
(3) If the impossibility occurs during the delay in acceptance or as a result of circumstances originating from the customer’s sphere of influence or through the customer’s fault, the customer shall remain obliged to provide consideration.
(4) Furthermore, the customer shall only have the rights set out in § 8(5) of these terms and conditions if Schokoma GmbH allows a reasonable grace period set for it to repair or deliver replacement parts for a defect for which it is responsible within the meaning of these terms and conditions to elapse without result through its own fault. These rights shall also apply in the event that it is impossible for Schokoma GmbH to repair or supply replacement parts or is unable to do so.
12 Right of withdrawal of Schokoma GmbH
In the event of unforeseen events within the meaning of § 5 of these terms and conditions, insofar as they significantly change the economic significance or the content of the service or have a significant effect on the operation of Schokoma GmbH, and in the event of subsequent impossibility of execution, the contract shall be adjusted appropriately. Insofar as this is not economically justifiable, Schokoma GmbH shall be entitled to withdraw from the contract in whole or in part.
Claims for damages by the customer due to such a withdrawal do not exist. If Schokoma GmbH wishes to exercise its right of withdrawal, it must inform the customer immediately after recognising the scope of the event, even if an extension of the delivery period was initially agreed with the customer.
13 Applicable law, place of jurisdiction, severability clause
(1) The law of the Federal Republic of Germany shall apply to these terms and conditions and the entire legal relationship between the customer and Schokoma GmbH.
(2) Insofar as the customer is a registered trader within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, Mönchengladbach shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
(3) Should a provision in these terms and conditions or a provision within the framework of other agreements be invalid, this shall not affect the validity of all other provisions or agreements.