General Business Conditions

Preliminary Provisions

These General Terms and Conditions of Delivery and Payment (the “Terms”), which supplement the applicable statutory provisions, shall govern all contracts for the supply of goods and provision of services entered into by Schäper Sportgerätebau GmbH (“Schäper”), provided that the Customer is acting in the course of its business or profession (Unternehmer).
Any terms and conditions of the Customer that deviate from or conflict with these Terms shall apply only if and to the extent that Schäper has expressly accepted them in writing.

1. Conclusion of Contract

A contract for the supply of goods or provision of services shall not come into effect until Schäper has issued written confirmation of the Customer’s order.

2. Prices

(1) Offers submitted by Schäper shall remain valid for the period stated in the relevant offer, but in no event for more than two months from the date of the offer. Unless otherwise stated, all prices are quoted in euros (EUR), ex works, exclusive of the statutory value-added tax applicable at the time of delivery.
The prices quoted apply to standard designs. Any deviation from a standard design shall be subject to additional charges for production, coordination and the preparation and approval of drawings.
(2) Packaging, postage, insurance and any other shipping or delivery costs are not included in the prices quoted and shall be invoiced separately.
(3) Where, following confirmation of an order, the Customer requests changes to the order specifications that result in additional work for Schäper, the Customer shall bear the costs of such additional work.
(4) Design drawings, tools, samples and comparable preparatory work commissioned or initiated by the Customer shall be chargeable even if the Customer subsequently elects not to place an order. To that extent, these Terms shall apply prior to the placement of an order. Unless otherwise agreed, the remuneration payable shall be determined by reference to the customary remuneration charged locally for comparable services.

3. Delivery Quantities and Delivery Periods

(1) Any delivery dates or delivery periods stated by Schäper shall be non-binding unless a specific delivery date or period has expressly been agreed in writing.
Schäper shall be liable in accordance with the applicable statutory provisions where the underlying purchase contract constitutes a fixed-date transaction (Fixgeschäft) within the meaning of section 286(2) no. 4 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”) or section 376 of the German Commercial Code (Handelsgesetzbuch – “HGB”).
(2) Schäper’s ability to make delivery is subject to normal and uninterrupted operating and production conditions. In the event of a delay in delivery, the Customer may terminate the contract after granting Schäper a reasonable additional period for performance and such period has expired without performance; the Customer shall not, however, be entitled to claim damages solely on account of such delay, subject to any mandatory statutory provisions to the contrary.
(3) Shortages of materials, operational or administrative disruptions, strikes, lockouts, including such events occurring at third-party businesses, and events of force majeure shall release Schäper from its obligation to deliver to the extent and for the duration that performance is prevented thereby.

4. Warranty for Defects

(1) The limitation period for claims in respect of defects shall be one year, subject to any mandatory statutory provisions to the contrary.
(2) The Customer shall inspect the goods for defects immediately upon delivery. Any apparent defects shall be notified to Schäper in writing without undue delay and in any event no later than one week following receipt of the goods. Any latent defects shall be notified to Schäper within one week after they become known to the Customer.
If a defect is not notified, is not notified within the applicable period, or is not notified in the required form, the Customer shall lose its rights in respect of that defect to the extent permitted by applicable law.
(3) Schäper shall not be liable in respect of advertising statements or defects in instructions for use, except where and to the extent that liability cannot lawfully be excluded.
(4) Minor defects that do not materially impair the value, suitability or usability of the sports equipment shall not give rise to warranty claims, to the extent permitted by applicable law.
(5) Schäper shall be entitled to determine the form of subsequent performance (Nacherfüllung), i.e. whether the defect is to be remedied or replacement goods are to be supplied.
If the first attempt at subsequent performance is unsuccessful, Schäper shall be entitled to make a further attempt at subsequent performance and may again determine whether such subsequent performance is to take the form of remedying the defect or supplying replacement goods.
(6) The Customer shall be entitled to rescind the contract and/or claim damages only after two attempts at subsequent performance have failed, subject to any mandatory statutory rights.
Any damages shall be limited to the Customer’s reliance interest (negatives Interesse); liability for consequential loss arising from defects is excluded.
The foregoing limitations of liability shall not apply to loss or damage resulting from injury to life, limb or health, or where Schäper, any of its legal representatives or any person employed or engaged by Schäper in performing its obligations has acted intentionally or with gross negligence.

5.Breach of Duty and Liability

(1) Schäper’s liability for breaches of contractual or other duties shall be limited to breaches caused intentionally or by gross negligence. This limitation shall not apply to loss or damage resulting from injury to life, limb or health or in any other case in which liability may not lawfully be excluded or limited.
(2) Schäper shall not be liable for loss or damage resulting from work carried out in accordance with drawings, artwork, print templates or samples that have been reviewed and approved by the Customer for use in production.
Schäper shall not be responsible for the structural design or accuracy of templates reproduced at the Customer’s request. Schäper shall, however, notify the Customer without undue delay if it becomes apparent to Schäper that the relevant templates cannot technically be implemented.
(3) In particular, where work is performed in accordance with specifications supplied by the Customer, Schäper shall not be liable for any infringement of third-party intellectual property rights resulting from compliance with such specifications. Schäper shall have no obligation to investigate whether the Customer’s specifications infringe any third-party intellectual property rights.

6. Terms of Payment

(1) Unless otherwise agreed, all invoices issued by Schäper shall be due and payable in full, without deduction, within eight days of the invoice date.
Invoice amounts of less than EUR 250.00 shall not qualify for any cash discount and shall be payable immediately upon receipt of the goods, without deduction.
(2) In the event of late payment, Schäper shall be entitled to charge default interest at the statutory rate applicable to commercial transactions, without prejudice to Schäper’s right to establish and recover any greater loss caused by the delay.
(3) Bills of exchange shall not be accepted. Cheques shall be accepted only on account of performance (erfüllungshalber) and subject to final collection.
(4) If the Customer is in default of payment, Schäper shall be entitled to suspend further performance under the contract.
If Schäper’s claim for payment is materially at risk, Schäper may require advance payment or adequate security. If the Customer fails or refuses to make the requested advance payment or provide the requested security, Schäper may rescind the contract and claim damages, subject to the applicable statutory requirements.
(5) Notwithstanding any allocation instructions given by the Customer, payments received shall be applied first against costs, then against interest and finally against principal. Where more than one claim is outstanding, payments shall in each case be applied first against the oldest outstanding claim, to the extent permitted by applicable law.
(6) In the case of individual, special or custom-made products supplied in conjunction with third-party products, the following payment schedule shall apply:
one third (1/3) of the total order value upon conclusion of the contract;
one third (1/3) upon completion; and
one third (1/3) in accordance with the payment terms set out in Clause 6(1).

7. Retention of Title

(1) Title to the goods delivered shall remain vested in Schäper until all claims held by Schäper against the Customer and existing as at the invoice date have been satisfied in full.
(2) If goods supplied subject to retention of title are processed, transformed or combined with other goods, Schäper shall acquire ownership or co-ownership of the resulting product in the proportion that the value of the goods subject to retention of title bears to the value of the resulting product prior to such processing, transformation or combination, to the extent provided by applicable law.
Goods subject to retention of title may be resold only in the ordinary course of the Customer’s business. Upon resale of such goods, the Customer hereby assigns to Schäper, by way of security, the claim against the purchaser arising from such resale. The Customer shall procure that the purchaser makes payments arising from the resale directly to Schäper where Schäper is entitled to require such direct payment.
Any derogation from the foregoing provisions shall require Schäper’s prior written consent.
(3) Any other disposal of goods subject to retention of title is prohibited, including, in particular, any transfer by way of security or pledge.
(4) If enforcement proceedings are commenced against the Customer’s assets and affect goods subject to Schäper’s retention of title, the Customer shall notify Schäper immediately in writing and shall provide all information required to protect Schäper’s rights, including the competent enforcement authority and relevant file reference number, and shall, where applicable, provide copies of the enforcement documents.
(5) Any items made available by Schäper to the Customer that do not form part of the goods or work to be delivered, including designs, construction drawings and tools, shall remain the property of Schäper.

8. Schäper Eight-Year Guarantee (Participating Countries Only)

In respect of products expressly designated as being covered by the Schäper Eight-Year Guarantee, Schäper grants an additional contractual guarantee extending beyond the applicable statutory rights in respect of defects, subject to the following terms and conditions.
(1) Material Scope
The Eight-Year Guarantee applies exclusively to the fully welded aluminium components of products expressly designated as being covered by the guarantee.
Products incorporating weights, or fitted with attachments such as weights, are excluded from the Eight-Year Guarantee.
(2) Eligible Customers
The Eight-Year Guarantee applies to customers in Germany who have purchased the relevant products directly from Schäper. Resellers are excluded.
(3) Scope and Duration of the Guarantee
(a) The guarantee period shall be eight years. It shall commence on delivery of the relevant product and expire at the end of the corresponding calendar quarter eight years thereafter.
(b) During the first two years following delivery, the Customer may exercise either its statutory rights in respect of defects or its rights under Schäper’s Eight-Year Guarantee.
Following expiry of that two-year period, the Customer may, in the event of a valid guarantee claim, request repair of the relevant aluminium component. If repair would be economically unreasonable, Schäper may instead offer replacement of the relevant product or component or monetary compensation.
(c) The Customer may also request monetary compensation instead of repair.
(d) Where monetary compensation is provided, Schäper shall reimburse the Customer in an amount of up to 80% of the purchase price.
(4) Exclusion and Expiry of the Guarantee
(a) The Eight-Year Guarantee shall cease to apply if the relevant product is no longer in its original condition as a result of modification, supplementation or any other alteration, including, in particular, where the product has not been used for its intended purpose.
(b) The same shall apply to any damage, malfunction or impairment attributable to incorrect operation, improper use, the application of force, vandalism, or ordinary wear and tear.
(c) Deviations in shape, colour or other characteristics resulting from the particular model or design, including deviations associated with customer-specific or custom-made products, shall not in themselves constitute a defect for the purposes of this guarantee.
In the case of custom-made products, the Eight-Year Guarantee shall apply only where its application has been expressly agreed in the relevant purchase contract.
(d) The Eight-Year Guarantee shall cease to apply if the marking identifying the quarter in which the product was delivered has been removed, obscured or rendered illegible.

9. Place of Performance and Jurisdiction

Where the Customer is a merchant (Kaufmann), a legal entity governed by public law or a special fund governed by public law, the place of performance and the exclusive place of jurisdiction, including in respect of obligations relating to payments by cheque or bill of exchange, shall be the place of Schäper’s registered office, to the extent permitted by applicable law.

10. Severability

If any provision of these Terms is or becomes invalid or unenforceable, the validity and enforceability of the remaining provisions and of any other agreements between Schäper and the Customer shall remain unaffected.