(LAST UPDATED 05/2019)


§ 1 Scope

1.1. These General Terms and Conditions (hereinafter "GTCs") apply to agreements on product deliveries, contract work (e.g. contract milling, contract graining, contract drying, contract screening) as well as enhancements which are concluded between Max Schmidt Feldspatwerk "Silbergrube" GmbH & Co. KG (hereinafter the "contractor" or "CON"), Silbergrube 1, 92726 Waidhaus, represented by Schmidt Verwaltungs GmbH, which is represented by its managing directors, and the client (hereinafter the "client" or "CL") in accordance with the individual agreement concluded between the client and the contractor. These GTCs also apply to all future agreements between the CON and the CL without the need to expressly renegotiate them.

1.2. These GTCs apply exclusively; therefore the CON hereby expressly objects to any conflicting conditions of the CL.

1.3. Any agreements that deviate from these GTCs, which were concluded with the CON's vicarious agents or assistants, must be confirmed by the CON in written form or text form in order to be effective.

§ 2 Offers/acceptance/order/conclusion of contract

2.1. Offers submitted by the CON are subject to change and non-binding, even if this is not explicitly mentioned in the CON's offer.

2.2. Orders placed by the CL have to be confirmed by the CON in written form or text form in order to be legally effective.

2.3. The contract with the CL is concluded subject to the proviso that the CON's suppliers deliver the required materials in the correct quantity and quality and in due time to the CON and additionally on condition that any materials to be provided by the CL are supplied to the CON in the correct quantity and quality and in due time. The above conditions require that the CON is not responsible for non-delivery, incorrect delivery or any delivery that fails to meet quantity or quality requirements. The CON must immediately inform the CL about the non-occurrence of the conditions.

§ 3 Prices

3.1. The prices quoted in the CON's offers are only binding within the offered period of validity.

3.2. Unless otherwise agreed, prices are generally carriage forward "ex works" (CON's registered office). The prices quoted are therefore generally exclusive of any costs of transport, postage and packaging as well as insurance, customs or other additional charges ("ex works" according to Incoterms 2010). Moreover, the prices are "net prices" and the applicable VAT must be added to these net prices.

3.3. The CON reserves the right to change the agreed prices in the event of cost increases occurring after conclusion of the contract (e.g. due to increases in the costs of wages, materials and raw materials). The CL's consent is not required to this end. Such an adjustment of agreed prices is only possible if there is a period of more than six weeks between the conclusion of the contract and delivery and if the cost increases have occurred after conclusion of the contract.

§ 4 Partial performance/partial delivery, delivery time/time of performance

4.1. The CON is entitled to make partial deliveries and provide partial performance.

4.2. Unless expressly agreed otherwise in written form or text form, the dates and deadlines communicated by the CON are non-binding.

4.3. Periods of delivery and performance generally start with the conclusion of the contract. If information, documents or materials to be procured or provided by the CL are necessary for the performance of the CON, or if an agreement is required between the CL and the CON regarding the production process, the properties of the base product or final product or any other clarification ("impediments to performance"), the period of delivery or performance will only start once all impediments to performance mentioned have been eliminated.

4.4. If circumstances beyond the CON's control complicate, delay or temporarily prevent the CON from assuming its obligations to deliver and provide performance ("hindrance"), the CON is entitled to postpone the delivery or performance for as long as the hindrance lasts. If circumstances beyond the CON's control make it permanently impossible for the CON to assume its obligations to deliver and provide performance, the CON is entitled to withdraw from the contract wholly or in part. In particular, the CON will not be responsible for non-occasioned official interventions, unforeseeable operational disruptions, strikes, lock-outs, work disruptions caused by political or economic circumstances, unavoidable shortages of raw materials or operating supplies, transport delays due to traffic disruptions and other unavoidable events which affect the CON, its suppliers or third-party companies on which the continuation of the CON's operations depends. Such circumstances are also deemed to include changes to and the absence of documents, information or materials to be provided by the client which are necessary in order to execute the order. The CON must immediately inform the CL about the impossibility of delivery or performance.
If the hindrance lasts longer than three months, the CL is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the (partial) performance or (partial) deliveries that have not yet been provided.

4.5. If the CL is in default of acceptance or culpably violates other obligations to cooperate, the CON is entitled to demand compensation for the damage incurred by it in this respect, including any additional expenses. The CON expressly reserves the right to further claims or rights. 

§ 5 Quality, weights, production loss

5.1. All the CON's products (e.g. natural products, synthetically manufactured products) are subject to variations in various respects (e.g. chemical and physical properties). Compositions, chemical and physical properties, dimensions, weights, drawings, illustrations or other data are therefore only binding if expressly agreed as binding in written form or text form.

5.2. The CON does not guarantee that the product is suitable for the purpose intended by the CL. The CL is solely responsible for verifying the suitability of the respective product for the intended use.

5.3. The weight of the consignment which was determined at the time of dispatch/arrival at the CON's factory on the basis of the CON's weighing slip is decisive for the weight calculation. If moist products are shipped, differences in moisture content cannot be claimed within the scope of the influence of weather conditions. The goods are delivered gross for net. In case of products to be delivered by the CON, deviations from the gross weight of up to 3 % are considered defect-free delivery.

5.4. During the production of materials provided by the CL, production loss of the provided material is possible accompanied by a reduced final product quantity of up to 25 %. This production loss is to be borne by the CL, and the reduced quantity of end product is considered defect-free delivery.

§ 6 Delivery and transfer of risk

6.1. If it has been agreed that the product is shipped to a location specified by the CL, the risk of accidental loss and accidental deterioration will pass to the CL once the product has been handed over to the person performing the transport, but at the latest upon leaving the CON's warehouse.

6.2. If it has been agreed that the product is collected by the CL, the risk of accidental loss and accidental deterioration will pass to the CL at the time the product is made available for collection and the CL is notified thereof ("ex works"/Incoterms 2010). The CL or its collecting agent is responsible for properly loading and securing the load. If the CL defaults on acceptance or if performance is delayed for other reasons beyond the CON's control, the risk will pass to the CL on the day of notification of readiness for delivery. The above specifications also apply to partial deliveries/partial performance.
Completed products are generally not stored under roof on the CON's premises. Therefore, the product may deteriorate (e.g. contamination, moisture) or be destroyed if the CL or the collecting agent fails to pick up the product in due time. The CL bears the risk of deterioration and loss from the day of receiving the notification of readiness for delivery. 

§ 7 Payment; set-off, retention

7.1. Unless otherwise agreed, the CON's claims are due immediately upon conclusion of the contract and payable without deduction within 21 days after receiving the invoice. The CON is entitled at all times to transfer the product only concurrently with the payment of the agreed price. Payment is made free of charge and expenses to the CON's business account specified on the invoice. Payment is only considered to have been made when the CON has the amount at its disposal.

7.2. The CL is only entitled to set-off or retention if its corresponding counterclaims are undisputed or have been legally established. The CL may assert a right of retention if the CON's price claim and the CL's counterclaim are based on the same contractual relationship. The CL hereby agrees to the offsetting of its receivables and liabilities against the CON.

§ 8 Reservation of title

8.1. The CON retains title to the delivered product ("reserved goods") until the price has been paid in full and all claims arising from the existing business relationship with the CL have been settled. In case of a current account with the CL, the entirety of reserved goods will serve as security for the balance claim.

8.2. The CL may not pledge, transfer by way of security or otherwise encumber the reserved goods with the rights of third parties.

8.3. The CL is only entitled to resell the goods within the scope of its proper business operations and on condition that it will only transfer the ownership to its buyers/customers when the latter have paid the price in full. The CL hereby assigns – upon concluding the transaction with the CON – to the CON as a precautionary measure all its future price claims against its buyers/customers from this resale without the need for a special declaration of assignment for the individual case of resale. The CON accepts this assignment. If there is a current account between the CL and its buyer/customer, the receivables assigned by the CL in advance refer to the acknowledged balance. At the same time, the CL assumes the obligation to communicate to the CON upon request the names of the buyers/customers and the amounts of the assigned receivables and to provide the information required to collect the receivables. Except for the CON's revocation, which is permissible at any time, the CL is authorized to collect these tacitly assigned purchase price demands.

8.4. If the reserved goods are processed/converted or combined/mixed with another item, the CON will acquire direct ownership of the new item. This new item will then be considered as reserved goods. If the reserved goods are processed/converted or combined/mixed with other items not belonging to the CON, the CON will acquire co-ownership of the new item in proportion to the value of the product (final invoice amount including VAT) to the other processed/converted or combined/mixed items at the time of processing/conversion or combination/mixing. In this case, the advance assignment pursuant to section 8.3 above will also be made in proportion to the value of the product (final invoice amount including VAT) to the other processed/converted or combined/mixed items at the time of processing/conversion or combination/mixing but not exceeding the amount of the final invoice of the product (incl. VAT) of the reserved goods. If the combination/mixing is done in such a way that the CL's item is to be regarded as the main item, it is deemed to be agreed that the CL transfers to the CON the proportional co-ownership. The CL will hold the sole ownership or co-ownership thus created in safekeeping on behalf of the CON. In accordance with the above provisions, the CL also assigns to the CON the claims for securing the purchase price demand which arise against a third party if the reserved goods are linked to a property.

8.5. The CL is obliged to treat the reserved goods with care and to insure them against customary risks, such as fire, water and theft at its own expense. If the CL does not comply with the insurance obligation despite being reminded by the CON, the CON may take out the insurance at the CL's expense, pay the insurance premium and collect it as part of the claim arising from the contract. If an insured event occurs, the CL hereby assigns to the CON all its claims against the insurer or injuring party with priority. The CON hereby accepts this assignment.

8.6. If the CL acts in breach of contract, especially if the CL defaults on payment or breaches the above obligations, the CON is entitled to take back the goods and the CL is obliged to surrender them, excluding any right of retention. If the reserved goods are in the possession of a third party, the CL is obliged to inform the CON of the owner and of the whereabouts and to assign to the CON surrender claims against the third party. The taking back of the reserved goods by the CON will not be considered a withdrawal from the corresponding contract. All costs arising from taking back the goods will be borne by the CL.

8.7. If the realizable value of the reserved goods exceeds the CON's total receivables by more than 20 %, the CON is obliged to release and retransfer securities to the CL to this extent. The CON is responsible for selecting the securities to be released.

8.8. If payments are suspended due to insolvency, the CL is obliged to immediately separate the reserved goods handed over by the CON and still available as well as the assigned receivables and to submit to the CON a detailed list thereof. This must happen at the latest when the application to open insolvency proceedings against the CL's assets is filed.

§ 9 Guarantee

9.1. The CON does not give any guarantees, nor does it assume a no-fault procurement risk and has no fault-based responsibility for the quality of the goods to be procured.

9.2. The CL must examine the goods immediately upon delivery and, if a defect is found, notify the CON immediately. If the CL fails to notify the CON, the goods are considered approved, unless the defect was impossible to detect during the inspection. If such a defect appears later on, the notification must be made immediately after the defect has been discovered, otherwise the goods will be considered approved despite this defect. The timely sending of the notification is sufficient to preserve the CL's rights.

9.3. The CL's warranty rights become statute-barred one year after delivery of the goods, unless the statutory period of limitation is longer (e.g. injury to life, limb or health or in the case of intentional or grossly negligent breach of duty).

9.4. The CL bears the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of the defect and for the timeliness of defect notification.

§ 11 Industrial property rights of the CON

11.1. The CON reserves the right of ownership and copyright to production methods, product compositions, know-how, formulations and analyses. Before passing them on to third parties, the CL needs the CON's express written consent. If a contract is not concluded, documents that have been customized for the CL must be returned to the CON without delay and unsolicited.

11.2. All rights to drawings, drafts and plans created by the CON, especially patent rights, copyrights and inventor's rights, are the exclusive property of the CON. All sales documents, such as catalogues, sample books, price lists, etc., which are made available to the CL, remain the property of the CON and must be returned at the latter's request.

11.3. The CL may use the CON's trademarks, trade names, other drawings and industrial property rights only with the CON's prior written consent and only in the CON's interest.

11.4. The CL is responsible for ensuring that no third-party property rights are infringed because of its instructions regarding shapes, dimensions, colour, weights, etc. The CL will indemnify the CON against any third-party claims due to the infringement of such industrial property rights, including all judicial and extrajudicial costs.

§ 12 Applicable law, place of jurisdiction, place of performance

12.1. The law of the Federal Republic of Germany applies to these GTCs and the entire legal relationship between the CON and CL, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

12.2. The court in whose district the CON has its registered office will have the exclusive jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

12.3. The place of performance for all claims arising from the contract is, as far as legally permissible, exclusively the CON's registered office.

§ 10 Limitation of liability; release from liability

10.1. The CON's liability for contractual breaches of duty and tortious claims is limited to intent and gross negligence. This does not apply to claims for damages due to injury to life, limb and health of the CL and claims due to the violation of essential contractual obligations. Unless the CON is accused of intentional or grossly negligent breach of contract, it will only be liable for foreseeable, typically occurring damage.

10.2. If the CON's liability is excluded or limited, this exclusion or limitation also applies to the liability of the actions of the CON's vicarious agents and assistants.

10.3. The CON does not assume any liability for materials, order components, shipping notes, processing instructions and the like, unless deviating agreements have been expressly made in writing. The CON is not obliged to check these in terms of the Product Liability Act, the German Civil Code or other laws for compliance with the legal standards. In these cases, the CL will be liable without limitation and will fully indemnify the CON against all third-party claims.