General Terms and Conditions
As of January 1, 2020
These General Terms and Conditions apply to any and all (even future) contracts of Schmidt Spiele GmbH except for those contracts concluded with consumers as defined under Sec. 13 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). Also, they do not apply if amended or excluded with the express written approval of Schmidt Spiele GmbH. The ordering party's terms and conditions do not even obligate Schmidt Spiele GmbH if Schmidt Spiele GmbH did not expressly object to them again. "Business" within the meaning of the provisions below is correspondent with its definition set forth in Sec. 14 BGB.
II. Delivery, passing of risk, returns, liability upon default
- Unless otherwise agreed, deliveries are shipped ex distribution depot. The cost of transport is for the ordering party. Upon handover of the object of purchase to the freight forwarder, the carrier, or any person or institution named to execute the delivery, the risk of accidental loss, destruction or deterioration passes to the ordering party.
- Delays in the delivery or the performance caused by force majeure and due to events for which Schmidt Spiele GmbH cannot be held responsible that ultimately render the delivery more difficult or impossible, and here in particular subsequent difficulties in the procurement of materials, industrial disruptions, strike, lockout, insufficient means of transport, administrative orders, etc., even if they occur at pre-suppliers of Schmidt Spiele GmbH or their respective sub-suppliers, prolong the delivery and performance deadlines by the duration of such hindrance plus a respective one-week start-up period. If the above delays in delivery and performance apply only to parts of the object of purchase, Schmidt Spiele GmbH is entitled to perform partial deliveries for the remaining parts. In the event of a delay in delivery or performance by more than 2 (two) months caused by the above hindrances, the ordering party merely has the right to rescind such part of the contract which has not yet been fulfilled after having set reasonable extension of time. Claims for damages on the part of the ordering party are excluded.
- Partial deliveries, even if not due to a delay in delivery or performance, are permissible unless the customer demonstrates that it has no interest in the partial delivery.
- If a delay in delivery or performance occurs as a result of minor negligence on behalf of Schmidt Spiele GmbH, liability for compensation is limited to 5% of the purchase price. This does not affect any right of rescission the ordering party may have.
- The ordering party only has a right of return if (i) legal provisions demonstrate a respective entitlement; or (ii) if this was expressly agreed at the time of the signing of the contract; or (iii) if the delivered goods are in perfect condition and (iv) are still featured in the most current catalog of Schmidt Spiele GmbH.
- If payment upon receipt of invoice has been agreed, Schmidt Spiele GmbH is only obliged to deliver if the ordering party, at the time Schmidt Spiele GmbH ships the delivery, has sufficient credit with the respective credit insurer of Schmidt Spiele GmbH (currently Coface AG,) to cover a payment default for the outstanding invoice of the goods to be delivered.
III. Payment and clearing
- Invoices issued by Schmidt Spiele GmbH, unless otherwise agreed, are payable 14 (fourteen) days following delivery and the receipt of invoice. This equally applies to invoices for authorized partial deliveries.
- For bank transfers and payments made by check, such day is deemed the date of in-payment on which the amount is de facto credited to Schmidt Spiele GmbH.
- Payments cannot be effected by direct debit.
- Checks or bills of exchange will only be accepted on account of performance and subject to charging of the customary discount and collection fees. Discount expenses are charged as from the date when the debt is due and are payable immediately, regardless of when the bill of exchange is accepted.
- If payment is not effected within 30 (thirty) days following delivery and receipt of the invoice, the ordering party is in default. If the ordering party is a business, a legal entity under public law or a special fund under public law within the meaning of Sec. 310 (1) first sentence, BGB, the ordering party will owe interest for default in the amount of 9 (nine) percentage points above the base interest rate. All other ordering parties will owe interest for default in the amount of 5 (five) percentage points above the base interest rate. If the ordering party is a business, a legal entity under public law or a special fund under public law within the meaning of Sec. 310 (1) first sentence, BGB, the ordering party will owe Schmidt Spiele GmbH in the event of default the lump sum payment of €40.00 to be added to the compensation owed, provided that such compensation is founded in the cost of prosecution. The assertion of further damages caused by delay against businesses, legal entities under public law or special funds under public law remains reserved.
- Schmidt Spiele GmbH has the right to offset its claim against that of the ordering party for any legal reason whatsoever – where appropriate against the adjustment of interest – even if the parties’ reciprocal claims are due at different times.
- The ordering party is excluded from offsetting its counterclaims against due claims of Schmidt Spiele GmbH unless those counterclaims are undisputed or established as final and absolute or are pending and well-founded within the framework of a legal dispute ready for decision or – if the ordering party is the consumer – the counterclaim in question is for payment accrued from the right to withhold performance under the same contractual relationship.
- Schmidt Spiele GmbH will issue a credit note for recognized returns within 14 (fourteen) days following the receipt of the goods at Schmidt Spiele GmbH. It is not permissible for the ordering party to reduce the invoice total prior.
IV. Retention of title
- All goods delivered by Schmidt Spiele GmbH remain the property of Schmidt Spiele GmbH until all receivables from the existing business relationship have been met, including any future or conditional claims, even from contracts concluded simultaneously or at a later point in time (reserved property). This applies even if payments were made towards specifically designated claims. For open accounts, the reserved property is deemed security for the total claim under the business relationship with Schmidt Spiele GmbH.
- The ordering party may only sell the retained goods in the ordinary course of business and only for as long as they have not defaulted and / or no application has been submitted for the instigation of insolvency proceedings against their assets.
- The ordering party's claims from the resale of the retained goods, even within the framework of contracts for services and materials, are herewith already transferred to Schmidt Spiele GmbH. If the retained goods are sold together with items not supplied by Schmidt Spiele GmbH, the transfer of the claim from the resale applies only for the amount of the values specified in the invoice from Schmidt Spiele GmbH of the individually sold retained good.
- The ordering party is authorized to collect receivables from the resale until Schmidt Spiele GmbH revokes such authorization, which they may at any time. A transfer of the receivables by the ordering party is excluded. The ordering party is obliged to communicate to its buyers the transfer to Schmidt Spiele GmbH at the latter's request and to provide to Schmidt Spiele GmbH the information and records necessary to enforce the claims.
- If third parties seize or impound Schmidt Spiele 's retained goods, or receivables assigned to Schmidt Spiele GmbH by way of security, the ordering party is obliged to disclose the retention of title or the assignment by way of security and to notify Schmidt Spiele GmbH immediately by sending the impound report or the seizure report. All costs of an intervention on behalf of Schmidt Spiele GmbH are for the ordering party.
- If the value of the securities provided to Schmidt Spiele GmbH exceeds the total value of Schmidt Spiele GmbH's claims under the business relationship by more than 20%, Schmidt Spiele GmbH, at the request of the ordering party, is obliged to reconvey or release claims insofar as the value of the securities exceeds that of the claims by more than 20%.
V. Liability for defects
- If the ordering party is a business, they are obliged to report to Schmidt Spiele in writing any apparent defect of the purchased item within a two-week period as from the time of delivery of the goods. Sending of the report suffices for the timely notification. If the ordering party – a business – fails to meet this deadline, it forfeits all claims or rights in relation to the defect to be reported. Applicable obligations to report any defects pursuant to Sec. 377 of the German Commercial Code (Handelsgesetzbuch, HGB) remain unaffected and prevail
- If the ordering party is a business, the ordering party's rights in the case of a mere negligent breach of duty on behalf of Schmidt Spiele GmbH is limited for defects to the right of supplementary performance, of rescission, or of reduction. If the ordering party gives Schmidt Spiele GmbH a reasonable deadline for the supplementary performance in this regard, the ordering party's rights – once this deadline has expired – in the case of a mere negligent breach of duty on behalf of Schmidt Spiele GmbH are limited to the right of rescission and reduction; claims for damages are excluded in this case. The provisions under Secs. 478, 479 BGB remain unaffected.
- If the ordering party is a business, claims for damages by virtue of a breach of duty within the meaning of Sec. 280 (1) BGB are excluded insofar as the damage is not due to the willful or grossly negligent breach of duty on behalf of Schmidt Spiele GmbH or the willful or grossly negligent breach of duty of a legal representative or vicarious agent of Schmidt Spiele GmbH or if the underlying breach of duty does not concern a material contractual obligation (cardinal duty). The above limitation of liability does not apply to damage that is the result of harm to life, body, or health. The compelling liability under the provisions of the German Product Liability Act remain unaffected.
- If the ordering party is a business, a legal entity under public law or a special fund under public law within the meaning of Sec. 310 (1) first sentence, BGB, possible claims for defect on behalf of the ordering party lapse pursuant to Sec. 437 BGB as from the start of the limitation period calculated as from the end of one year. The provisions under Secs. 478, 479 BGB remain unaffected.
- If the ordering party is a business, they do not have the right to withhold performance based on defects of the goods delivered so that the payment obligations towards Schmidt Spiele GmbH must be fulfilled when due, unless the underlying defects were undisputed or established as final and absolute or justified within the framework of a pending legal dispute ready for decision.
- If the ordering party is a qualified merchant, a legal entity under public law, or a special fund under public law, the courts at the seat of Schmidt Spiele GmbH, Lahnstrasse 21 in 12055 Berlin (Germany) shall have jurisdiction for all disputes arising under this contract.
- These Terms and Conditions are governed by the laws of the Federal Republic of Germany.