Terms and Conditions
Schrader International GmbH
Aftermarket Terms and Conditions of Sale and Delivery 2018
1.1 For the purposes of these Aftermarket Terms and Conditions of Sale and Delivery
("Terms of Delivery"):
- "Seller" means Schrader International GmbH;
- "Goods" means the goods to be delivered by Seller;
- "Buyer" means the party to which the Goods are sold by Seller;
- "in writing" excludes e-mail, unless and to the extent expressly provided
2. Scope of Application
2.1 Sales and deliveries by Seller shall be made exclusively in accordance with the
following Terms of Delivery, which shall be accepted by Buyer by the placing of an
order or the receipt of delivery by Buyer.
2.2 These Terms of Delivery shall also apply to all future transactions regarding Goods
2.3 The application of Buyer''s conflicting or supplementary terms and conditions shall be
excluded, even if Seller does not expressly object to such terms and conditions.
3. Order and Acceptance
3.1 Offers by Seller shall be non-binding. Buyer''s orders shall be in writing. A contract shall
not become effective until it has been confirmed by Seller in a written confirmation
of order and shall be governed exclusively by the contents of the confirmation of order
and these Terms of Delivery.
3.2 Verbal agreements or promises shall only be valid if an authorised employee of Seller
has confirmed them in writing.
4. Field Staff
The field staff of Buyer are not authorised to represent Seller. In particular, the field
staff cannot conclude contracts and make binding promises concerning the Goods or
5. Sales Documentation and Samples
Seller retains all rights in the sales documentation (in particular pictures, drawings,
data on weight and size) and samples. These items must not be made available to
third parties and must be returned to Seller without undue delay on demand.
6.1 Unless the parties have agreed upon a certain price, the price shall be determined by
Seller''s price list as applicable at the date of the conclusion of the contract.
6.2 All prices of Seller are Ex Works(Incoterms in its latest version) of the respective plant
of Seller exclusive of statutory VAT in the respective applicable amount and do not
include any shipment and packaging costs, which will be charged separately. Buyer
shall bear any public charges such as possible customs duties that may arise in
connection with the import of the Goods.
6.3 If the agreed delivery date is more than four (4) months later than the conclusion of
the contract and if, after conclusion of the contract, Seller has incurred unforeseeable
cost increases with regard to the Goods for which it does not bear responsibility, Seller
shall be entitled, at its reasonable discretion, to pass on such higher costs by
increasing the agreed price on a pro rata basis.
6.4 With regard to long-term contracts concluded with Buyer, in particular long-term
supply contracts, Seller is entitled to reasonably increase its prices with effect from
the first day of January of any calendar year if and to the extent Seller''s costs for the
Goods increased during the previous calendar year. Sellershall inform Buyer in writing
of the intended increase at least eight (8) weeks before it will take effect.
7. Terms of Payment; Invoices
7.1 Each invoice of Seller shall be due for payment without any deductions within thirty
(30) days from the date of invoice; if this period for payment lapses unsuccessfully,
Buyer shall be in default.
7.2 Payments by Buyer shall not be deemed to have been made until Seller has received
7.3 In the event that Buyer is in default, Seller shall be entitled to demand default interest
in the amount of eight (8) percentage points above the base rate as defined in Section
247 BGB. Any claims for further damages due to said default shall remain unaffected.
7.4 Bills of exchange and checks shall only be taken on account of performance upon
special arrangement and without any bank charges or other costs for Seller.
7.5 Seller is entitled to issue partial invoices for partial deliveries as defined in Section 10.6
8. Set-off and Right of Retention
Buyer is only entitled to a set-off if its counterclaim is uncontested by Seller. Buyer is
only entitled to assert a right of retention to the extent that its counterclaim is based
on the same contract and is uncontested by Seller.
If Seller becomes aware of the risk of Buyer''s impossibility to perform (mangelnde
Leistungsfähigkeit) after conclusion of the contract, Seller shall be entitled to make
outstanding deliveries only against prepayment or the provision of security. If such
prepayments or security have not been rendered even after the expiry of a reasonable
grace period, Seller may partially or totally rescind individual or all of the affected
contracts. Seller shall remain entitled to assert further rights.
10.1 Delivery dates and delivery periods are only binding if they have been agreed in the
contract as binding and Buyer has provided Seller in a timely manner with all of the
information or documentation required for the performance of such delivery and
Buyer has made any advance payments in the manner and amount as agreed upon by
the parties. Delivery periods agreed upon by the parties shall begin on the date of the
confirmation of order. In the event of additional or supplementary contracts entered
into at a later date, the delivery periods and delivery dates shall be extended or
rescheduled accordingly, as applicable.
10.2 Events that are unforeseeable, unavoidable and outside the control and sphere of
influence of Seller and for which Seller does not bear responsibility shall release Seller
for the duration of such event from its obligation to make timely delivery or to
perform timely; in particular, acts of God, war, natural disasters and labor disputes
shall be considered to be such events. Delivery and performance periods and dates,
as the case may be, shall be extended or rescheduled, as applicable, by the length of
such disturbance, and Buyer shall be informed of the occurrence of such disturbance
in a reasonable manner. If the end of such disturbance is not foreseeable, or should it
continue for more than two (2) months, each party is entitled to rescind the contract.
10.3 With regard to Goods that Seller itself does not produce, the obligation to deliver shall
be subject to Seller''s correct and timely receipt of such Goods from its suppliers.
10.4 If deliveries by Seller are delayed, Buyer shall only be entitled to rescind the contract
if (i) Seller is responsible for the delay and (ii) a reasonable grace period set by Buyer
10.5 Should Buyer be in default of the acceptance of delivery or should he be in breach of
any other obligations to cooperate with Seller, Seller shall be entitled, without
prejudice to its other rights, (i) to reasonably store the Goods at Buyer''s risk and
expense or (ii) to rescind the contract in accordance with statutory law.
10.6 Seller may make partial deliveries for good reason if and to the extent this is
reasonable for Buyer.
11. Shipment; Passing of Risk; Transport Insurance
11.1 Unless otherwise agreed in advance, Seller shall ship the Goods to Buyer at Buyer''s
expense and risk. The shipment shall be made using a reasonable method of shipment
in the usual manner of packaging. The address for shipments to Buyer shall be the
address that is used by Seller for regular communication to Buyer unless otherwise
designated by Buyer in writing.
11.2 Risk shall pass to Buyer upon delivery at the agreed place of delivery. Should Buyer be
in default of acceptance, risk shall pass to Buyer upon default. If, in case the Goods
shall be collected by Buyer or a third party authorised by Buyer, and delivery is delayed
on grounds for which Buyer is responsible, risk shall pass to Buyer on the date Buyer
is notified of the readiness of the Goods for shipment.
11.3 Buyer shall be obliged to inspect the Goods upon receipt for visible transport damages
and to inform Seller immediately about any such transport damages in order to enable
Seller to secure its potential claims against the carrier. Buyer shall, at Seller''s
discretion, promptly return or prepare for pick-up by Seller any damaged Goods
received, in their original packaging.
12. Retention of Title
12.1 The Goods shall remain Seller''s property until any and all claims of Seller arising from
its business relationship with Buyer have been paid in full. In case of current accounts,
this retention of title shall serve as security for the claim for the balance to which
Seller is entitled.
12.2 Buyer shall only be allowed to sell Goods subject to Seller''s retention of title ("RoT
Goods ") within normal and proper business transactions. Buyer is not entitled to
pledge the RoT Goods, grant chattel mortgages on them or make other dispositions
endangering Seller''s title to the RoT Goods. Buyer hereby assigns its receivables
arising from the resale of the RoT Goods to Seller, and Seller hereby accepts such
assignment. Should Buyer sell the RoT Goods together with other goods, this
assignment of receivables shall only be agreed to for an amount equivalent to the
price agreed to between Seller and Buyer plus a safety margin of ten (10) % of this
price. Buyer is granted the revocable authorisation to collect in trust the claims
assigned to Seller in Buyer''s own name. Seller may revoke such authorisation and the
right to resell the RoT Goods if Buyer is in default of the performance of material
obligations such as making payment to Seller.
12.3 Should the RoT Goods be combined with other goods, Seller shall acquire joint
ownership of the new goods in the ratio of the value of the RoT Goods to the other
goods at the date of combination. Should the combination of the goods occur in such
manner that Buyer''s goods are to be regarded as the main goods, it shall be deemed
to be agreed that Buyer assigns proportionate joint ownership to Seller. Buyer shall
hold the joint ownership created in such manner in custody for Seller.
12.4 Buyer shall provide Seller at all times with all desired information concerning the RoT
Goods or receivables assigned to Seller under this contract. Buyer shall immediately
notify Seller of any attachments of or claims to the RoT Goods by third parties and
shall provide the necessary documents in this regard. Buyer shall at the same time
advise the third party of Seller''s retention of title. The costs of a defense against
attachments and claims shall be borne by Buyer.
12.5 Buyer is obliged to treat the RoT Goods with care for the duration of the retention of
12.6 Should the realisable value of the securities exceed all of Seller''s claims that are to be
secured by more than ten (10) %, Buyer shall be entitled to demand a release to such
12.7 Should Buyer be in default of material obligations such as payment to Seller, and
should Seller rescind the contract, Seller may, notwithstanding any other rights,
request surrender of the RoT Goods and may make use of them otherwise for the
purpose of satisfying its matured claims against Buyer. In such case, Buyer shall grant
Seller or Seller''s agents immediate access to the RoT Goods and surrender the same.
12.8 In case of deliveries to other jurisdictions in which the foregoing provisions governing
the retention of title do not have the same effect as in Germany, Buyer shall do
everything to create equivalent security rights for Seller without undue delay. Buyer
shall cooperate in all measures such as registration, publication, etc. that are
necessary and beneficial to the validity and enforceability of such security rights.
12.9 On Seller’s demand, Buyer is obliged to appropriately insure the RoT Goods, provide
Seller with the respective proof of such insurance and assign the claims arising under
such insurance to Seller.
13. Trademarks and Advertising
13.1 Buyer shall not perform and may not authorise a third party to perform any act that
may endanger the trademarks or other intellectual property rights used by Seller in
relation to the Goods. In particular, Buyer may not obscure, alter or remove in any
manner the trademarks and/or other distinctive features, whether imprinted or
attached, that are part of Seller''s Goods and may not include or attach any other
13.2 If Seller provides Buyer with sales promotional, advertising and sales material
("Advertising Material"), such Advertising Material shall remain the property of Seller.
Buyer may use the Advertising Material only in accordance with the instructions of
Seller and in relation to the sale of Goods, and Buyer may not authorise any third party
to use the Advertising Material.
13.3 Buyer may only advertise the Goods and use the Advertising Material and the
trademarks of Seller for advertising the Goods if Seller has granted its prior express
consent in writing. Seller may withdraw its consent at any time; in such case the entire
advertising of Buyer must be ceased at Buyer''s expense according to the instructions
of Seller. Irrespective of Seller''s consent, Buyer shall in any event remain responsible
for ensuring that all advertising measures or advertisements fulfill the applicable
statutory requirements, if any, and do not breach any industrial property rights of
14. Quality; Buyer''s Rights in case of Defects; Duty to Inspect the Goods
14.1 Upon passing of the risk the Goods shall be of the agreed quality; the quality will
exclusively be determined by the specific written agreements concerning the
characteristics, features and specifications of the Goods.
14.2 Information provided in sales catalogues, price lists and any other informative
literature provided by Seller or any other descriptions of the Goods shall under no
circumstances constitute a guarantee for any specific quality of the Goods; such
specific quality or durability guarantees must expressly be made in writing.
14.3 Buyer''s rights in case of defects of the Goods shall require that Buyer inspects the
Goods upon delivery without undue delay and notifies Seller of any defects in writing
and without undue delay, but no later than two (2) weeks following delivery; hidden
defects must be notified to Seller in writing without undue delay upon their discovery.
14.4 In the event of a notification of a defect, Seller shall have the right to inspect and test
the Goods to which objection was made. Buyer will grant Seller the required period of
time and opportunity to exercise such right. Seller may also demand from Buyer that
Buyer returns to Seller at Seller''s expense the Goods to which objection was made.
Should Buyer''s notification of the defect prove to be unjustified and provided Buyer
has realised this prior to the notification of the defect or has not realised it in a
negligent manner, Buyer shall be obliged to reimburse Seller for all costs incurred in
this respect, e.g. travel expenses or shipping costs.
14.5 Seller shall be entitled to remove the defect at its option by remedying the defect or,
alternatively, by delivering a replacement, both free of charge to Buyer (together
14.6 Buyer shall give Seller reasonable time and opportunity for Subsequent Performance.
14.7 Items that have been replaced by Seller shall, upon its demand, be returned to Seller.
14.8 Buyer''s rights in case of defects shall be excluded in the following events: (i) natural
wear and tear; (ii) defects of the Goods due to reasons for which Buyer is responsible;
(iii) incorrect assembly and/or installation by Buyer or a third party commissioned by
14.9 Subsequent Performance does not include installation and removal of the defective
Goods; Buyer shall bear installation and removal costs.
14.10 Should the Subsequent Performance fail, should such remedy be unreasonable for
Buyer or has Seller refused such remedy pursuant to Section 439 (3) German Civil Code
(Bürgerliches Gesetzbuch; "BGB"), Buyer may, at its option, rescind the contract in
accordance with statutory law or reduce the purchase price and/or claim either
damages pursuant to Section 15 or the reimbursement of its futile expenses.
14.11 The limitation period for Buyer''s claims for defects shall be twelve (12) months
beginning with the handover of the Goods to Buyer. The provisions on the statute of
limitations of Section 479 BGB shall remain unaffected. For damage claims of Buyer
due to other reasons than defects of the Goods or for rights of Buyer with respect to
defects concealed in bad faith or caused intentionally, the statutory limitation period
14.12 If used Goods are sold, all rights of Buyer due to defects shall be excluded, save for
Buyer''s mandatory claims.
15. Limitation of Liability and Damage Compensation
15.1 Seller''s obligation to pay damages shall be limited as follows:
a) For damages caused by a breach of a material contractual obligation, Seller
shall only be liable up to the amount of the typically foreseeable damage at
the time of entering into the contract. Seller shall not be liable for damages
caused by a breach of a non-material contractual obligation.
b) The limitation of liability as set out above shall not apply to damages caused
intentionally or by gross negligence, culpably caused personal injuries nor to
any liability under the German Product Liability Act and in case of any further
mandatory liability. Furthermore, it shall not apply if and to the extent Seller
has assumed a guaranty.
15.2 Buyer shall take all reasonable measures necessary to avert and reduce damages.
15.3 The above limitation of liability shall apply mutatis mutandis to claims for the
reimbursement of expenses.
16. Product Liability
If Buyer sells the Goods, whether unchanged or changed, Buyer shall indemnify Seller
in their internal relationship against any product liability claims of third parties if and
to the extent Buyer is responsible for the defect leading to the liability also within their
17.1 "Confidential Information" shall mean any business and trade secrets and any other
confidential information of Seller or Buyer, irrespective of (i) its nature and (ii)
whether and in which form it is tangible, which the respective party itself or by a third
party delivers or otherwise discloses to the other party, whether orally, in writing,
electronically or in any other manner whatsoever; this includes in particular all
information related to its records, know-how, manufacturing methods, techniques,
raw materials, sources of supply, financial information, pricing, sales, marketing plans,
market reports, research and development activities, and inventions. Information
which is designated as confidential shall in case of doubt be regarded as Confidential
17.2 The parties shall treat all Confidential Information confidential and shall refrain from
making Confidential Information available to third parties. With respect to
safeguarding the confidentiality of Confidential Information, either party undertakes
to employ the same degree of diligence and care it would employ in its own matters;
in any event, it must at least employ the diligence and care usual in the ordinary course
17.3 Either party may only disclose Confidential Information of the other party to its own
managing directors, employees, staff, authorised persons, advisors, consultants
and/or subcontractors if and to the extent (i) this is necessary for the performance of
their contractual obligations towards the other party and (ii) it is ensured that the
relevant persons are obligated in writing to keep Confidential Information confidential
to the largest extent legally permissible.
17.4 The above obligations shall not apply to any information that:
(i) has already been common knowledge at the time of disclosure or becomes
common knowledge afterwards without any breach of the above obligations;
(ii) the party obliged to maintain confidentiality legally receives or has legally
received from a third party if the third party or the person from whom the
third party received the information is not obliged to maintain confidentiality;
(iii) upon disclosure of the respective information to the party that is obliged to
maintain confidentiality is already known to that party independent from the
other party and without using the information received so far; this exception
from the confidentiality obligation shall only apply if the obliged party objects
to its confidentiality obligation without undue delay after receipt of the
(iv) is legally required to be disclosed.
17.5 The above obligations under this Section 17 shall apply during the term of the contract
and shall remain effective for a term of five (5) years thereafter.
18. Compliance with Anti-Corruption Laws
18.1 Both Seller and Buyer represents, warrants and undertakes to comply with any
anticorruption law or similar legislation, codes, rules, policies and regulation
applicable to the performance of its obligations in relation to any contract (‘AntiCorruption
Laws’) and not take any action or permit, authorise or tolerate any action
in violation of the Anti-Corruption Laws.
19. Compliance with Data Protection
19.1 From time to time Seller may transfer data acquired from Buyer for the purpose of
carrying out the performance of this contract with any member of its group (which
means subsidiaries, ultimate holding company and its subsidiaries worldwide). The
data collected may be transferred to, and stored at, a destination outside the
European Economic Area ("EEA"). It may also be processed by staff operating outside
the EEA who work for Seller. Buyer specifically consents and agrees to this transfer,
storing or processing. Seller will take reasonable steps necessary to ensure that
Buyer’s data is treated securely and in accordance with the practices contained in
Directive 94/46/EC as implemented through Regulation (EU) 2016/679.
20. General Provisions
20.1 Both parties agree to obtain any necessary export license or other documentation
prior to the exportation or re-exportation of any product, technical data, software or
software source code. Accordingly, neither party shall sell, export, re-export, transfer,
divert or otherwise dispose of any such product, technical data, software or software
source code directly or indirectly to any person, firm, entity, country or countries
prohibited by U.S. or applicable non U.S. laws. Each party shall secure at its own
expense, such licenses and export and import documents as are necessary for each
respective part to fulfil its obligations under the contract and/or these Terms of
20.2 Buyer may assign the rights arising from the parties'' contractual relationship to third
parties only with Seller''s written consent. Section 354a German Commercial Code
(Handelsgesetzbuch; "HGB") shall remain unaffected hereby.
20.3 Amendments and supplements to the contract and/or these Terms of Delivery and
any side agreements must be made in writing. The same shall apply to the amendment
of this written-form requirement.
20.4 If a provision of the contract and/or of these Terms of Delivery is invalid, in whole or
in part, the validity of the remaining provisions shall remain unaffected hereby.
20.5 Exclusive venue for any and all disputes arising from or in connection with the parties''
contractual relationship shall be Munich. Seller is entitled, however, to sue Buyer at
any other court having statutory jurisdiction.
20.6 The laws of the Federal Republic of Germany shall apply to these Terms of Delivery
and to the parties'' contractual relationship. The application of the UN Convention on
Contracts for the International Sale of Goods (CISG) shall be excluded.