General Conditions of Sale of J. Schmalz GmbH
Effective: September 2021
1. These General Terms and Conditions of Sale apply only in respect of entrepreneurs carrying out their commercial or self-employed professional activities as well as in respect of legal entities under public law. They apply to all business relations between J. SCHMALZ GmbH (referred to hereinafter as “Schmalz”) and the Customer, even if reference is not made hereto in subsequent contracts. They shall apply accordingly to work and services. In case of work performance, taking receipt of the delivered products shall be replaced by acceptance of work, and in case of services, by receipt of the service.
2. Any terms and conditions of the Customer that conflict with, supplement or deviate from these General Terms and Conditions of Sale shall not form part of the contract unless SCHMALZ would have consented, in writing, to their applicability. These General Conditions of Sale shall also apply in the event that SCHMALZ unconditionally effects delivery to the Customer, in full knowledge of its conflicting, supplementary, or deviating terms and conditions.
3. Any agreements between SCHMALZ and the Customer made in addition to or deviating from these General Terms and Conditions of Sale and entered into for the purpose of performing a contract shall be laid down in writing in the respective contract. This shall apply accordingly to the waiver of this written form requirement.
4. Rights going above and beyond those set forth herein to which SCHMALZ is entitled pursuant to statutory provisions or other agreements remain unaffected.
2. Conclusion of Contract
1. Offers quoted by SCHMALZ are subject to change and non-binding.
2. Specifications as to illustrations, drawings, weight and dimension, declarations of weight, measurements and consumption, as well as any other descriptions of the products contained in the documents pertaining to the offer, shall be approximate only, unless these have been expressly specified as binding. They constitute neither agreement nor guarantee as to the characteristics or durability of the products unless they were explicitly agreed as such. Customer expectations concerning the products, or the use thereof, do not constitute any form of agreement or guarantee.
3. SCHMALZ reserves all rights of ownership, copyrights, and any other property rights in respect of all offer documentation. Such documents must not be made available to third parties. At SCHMALZ’s request, the Customer must return all offer documentation without delay, provided it is no longer required in the ordinary course of business. This also applies mutatis mutandis in particular to all documents, drafts, samples, specimens and models.
4. Orders are not binding until they have been confirmed by SCHMALZ within two weeks by way of a written order confirmation or until SCHMALZ fulfils the order, in particular when SCHMALZ fulfils the order by consignment of the product. Any order confirmation processed by automated means and lacking signature and name is deemed to constitute a written order confirmation. To the extent the order confirmation contains obvious errors, misspellings, or miscalculations, SCHMALZ shall not be bound by it.
5. SCHMALZ’s silence in response to offers, orders, requests, or other declarations of the Customer is deemed to constitute consent only if there is a prior written agreement to that effect.
6. If the Customer’s financial situation deteriorates to a significant degree or if the legitimate request for the opening of insolvency or comparable proceedings in respect of the Customer's assets is refused due to lack of assets, SCHMALZ may rescind the contract in whole or in part.
3. Scope of Delivery
1. The written order confirmation issued by SCHMALZ is authoritative as regards the scope of delivery. Changes to the specifications or scope of delivery by the Customer require the written confirmation of SCHMALZ in order to be effective. SCHMALZ reserves the right to modify the design and form of the products, provided such modifications are customary in the industry or where the deviations are within DIN tolerance thresholds or if the modifications are not substantial and are reasonable for the Customer. This applies in the same way to the selection of materials, the specifications and the construction method.
2. Delivery in parts is permissible unless this is not reasonable for the Customer, giving due consideration to SCHMALZ’s interests.
4. Delivery Period and transportation
1. Delivery periods and dates must be agreed in writing and are non-binding unless these have been explicitly stipulated by SCHMALZ, in advance, as being binding.
2. The delivery period commences upon conclusion of the contract, but not before the Customer has produced all documents, permits, and approvals to be provided by it, all technical issues have been resolved and any deposit agreed has been received, or, in the case of international orders, not before payment has been received in full. In the case of delivery dates, the delivery date will be rescheduled as appropriate if the Customer does not produce the documents and approvals to be provided by it in good time, if approvals have not been issued in good timely, if all technical issues have not been completely resolved in time, or the agreed deposit payment has not been issued in time, or in the case of international orders, payment has not been received in full by SCHMALZ. All delivery dates and periods are subject to the due and timely fulfilment of all further obligations of the Customer.
3. The delivery period is deemed to have been met if the products have left the factory or SCHMALZ has communicated readiness for dispatch or collection within the agreed delivery period. All delivery dates and periods are subject to proper supply to SCHMALZ, unless SCHMALZ itself is responsible for the self-supply to it. In the event of improper supply to it, SCHMALZ is entitled to rescind the contract. SCHMALZ will inform the Customer immediately as to whether it intends to exercise its rescission right and will reimburse any advance payment received from the Customer.
4. In the case of delay in delivery, the Customer is entitled to rescind the contract upon fruitless expiry of a reasonable grace period set by the Customer for SCHMALZ upon commencement of the delay in delivery.
5. Unless otherwise agreed, in writing, the method of transportation and shipping shall be selected at the reasonable discretion of SCHMALZ. Unless otherwise agreed, in writing, SCHMALZ ships the product uninsured. The Customer will be invoiced separately for any insurance costs incurred.
6. If SCHMALZ and the Customer have entered into a framework contract governing future deliveries with fixed delivery periods and dates and the Customer fails to call the products in due time, SCHMALZ is entitled, upon expiry of a reasonable grace period to be set by it, to deliver and invoice the products, to rescind the contract, or to claim damages or reimbursement of expenses, whereby damages or reimbursement of expenses can be claimed only if the Customer is not responsible for the failure to call the products in due time.
5. Supply of Software
1. If SCHMALZ supplies the Customer with standard software as part of or in connection with the supply of the corresponding hardware for temporary or permanent use (referred to hereinafter as “Software”), the following provisions shall apply for the entire supply and insofar as any breach of duty or malfunction is attributable to the Software. In addition, the other provisions of these General Terms and Conditions of Sale apply with respect to the hardware. Unless agreed separately, SCHMALZ does not assume any obligation to provide services.
2. Upon passage of risk, the Software shall have the agreed characteristics and be suitable for the contractually agreed use and, in the absence of any such agreement, for customary use. The Software meets the criterion of practicality and is of the quality customary for this kind of software; it is not, however, error-free. Any restriction to the functionality of the programme resulting from defects in the hardware, environmental conditions, incorrect operation or similar shall not constitute a defect. A non-material reduction in quality will not be taken into account.
3. The Software is subject to legal protection. In the dealings between the contracting parties, SCHMALZ is exclusively entitled to all copyrights, patents, trademarks and all other intellectual property rights in the Software and in other items provided or made available to the Customer by SCHMALZ during the initiation of contractual dealings and in the course of the fulfilment of the contract. If third parties hold such rights, SCHMALZ has corresponding rights of use.
4. SCHMALZ grants the Customer the non-exclusive right to use the Software. Unless otherwise agreed, the right of use applies in the country in which the place of delivery for the hardware is located. The Customer acquires the same rights in enhanced or newly developed software as in the standard software.
5. The right of use is limited to the agreed period. In the absence of any such agreement, the right of use is unlimited as to time. If the right of use is granted for a limited period, the following provisions shall also apply: the Customer is permitted to use the Software only with the hardware specified in the contract documents (e.g. software product certificate), and in the absence of such stipulation, with the hardware delivered together with the Software. The use of the Software with another device is subject to the explicit written consent of SCHMALZ and in the event of the use of the Software with a more powerful device, establishes the right to reasonable additional payment for SCHMALZ; this does not apply if and insofar as the Customer temporarily uses the Software with a replacement device within the agreed scope of use due to a defect in the stipulated device.
8. The Customer requires a right of use to be agreed separately in order to use the Software on several devices or at several workstations simultaneously. The same applies to the use of the Software in networks, even if this does not involve any duplication of the Software.
9. The Customer is permitted to make a security copy of the programmes as necessary to ensure safe operation. Security copies must be stored securely and, where technically possible, labelled with the copyright notice of the original data storage media or the download version of the Software. Copyright notices, trademarks and product labels are not permitted to be removed, altered or concealed. Copies that are surplus to requirements must be deleted or destroyed. The user guide and other documentation provided by SCHMALZ is permitted to be copied only for internal company purposes.
10. The Customer is permitted to decompile the interface information pertaining to the programmes only within the limits set forth in Section 69 e Copyright Act (Urheberrechtsgesetz, UrhG) and only after notifying SCHMALZ, in writing, of its plans and requesting the necessary interface information with a notice period of at least two weeks.
6. International Deliveries
1. The Customer undertakes to comply with all applicable provisions of export and foreign trade law of the Federal Republic of Germany, the European Union and the United States of America, as well as all other applicable national and international export control regulations and foreign trade laws.
2. The contract is concluded subject to the legality of the supply of the products (including the Software) as regards the contents and the individuals and entities directly and indirectly involved pursuant to all of the provisions stipulated in the foregoing subsection 1.
3. In the case of cross-border deliveries, the Customer must in good time submit to the competent authorities all declarations required for export from Germany and import into the destination country and take all measures, specifically procure all documentation required for customs processing, and comply with the requirements for any export controls or other restrictions on marketability.
4. The deliveries are subject to the condition precedent that performance is not precluded by national or international rules, in particular export control regulations, as well as embargoes or other sanctions.
5. Delays attributable to export controls extend delivery periods accordingly; delivery dates will be postponed as appropriate. In the case of supplies that are subject to approval, SCHMALZ has the right to delay performance until such time as export approval has been issued and the Customer has furnished evidence thereof to SCHMALZ, or to rescind the contract. In such cases, SCHMALZ’s liability based on delayed performance or non-performance is excluded.
6. The Customer undertakes not to use any products manufactured by SCHMALZ (including the Software), parts of such products and/or technologies used by SCHMALZ in weapons and/or weaponry, nor to sell such products or to offer the same for sale.
7. If the Customer breaches an obligation under this Section 6 and/or if a business transaction is prohibited, in whole or in part, SCHMALZ is entitled to rescind this agreement, in whole or in part, for cause (“aus wichtigem Grund”) without the need to observe a notice period. This shall not affect any claims to which SCHMALZ is entitled against the Customer.
7. Prices and Payment
1. In the absence of any specific agreement to the contrary, all prices apply ex works and are exclusive of shipping and packaging costs, insurance, statutory taxes, customs duties, and other levies. The costs incurred in this context, in particular the costs for packaging and transport of the products, will be invoiced separately. Where the net order value is less than EUR 50, SCHMALZ is entitled to charge a net minimum quantity surcharge of EUR 10 (exception: orders placed through the online shop). Statutory VAT will be stated separately on the invoice at the statutory rate valid on the invoicing date.
2. Orders without expressly agreed fixed prices and with a delivery period or date of at least six weeks from the conclusion of contract will be invoiced at the list prices of SCHMALZ valid on the day of delivery. The recording of the list price valid on the order date on the order form or order confirmation does not constitute agreement of a fixed price. The Customer shall be entitled to rescind the contract if prices are increased by more than 5%. The Customer will promptly notify SCHMALZ upon the latter's request of whether or not it will exercise such right of rescission.
3. In the absence of any specific agreement to the contrary, the net delivery price is payable immediately upon delivery. The date upon which SCHMALZ is able to freely dispose of the delivery price is considered to be the payment date. If the Customer defaults in payment, it must pay default interest of 9 percentage points above the applicable base interest rate p.a. Any claims of SCHMALZ going above and beyond this shall remain unaffected.
4. In the case of international orders, in derogation from the foregoing subsection 3 above, payment shall be made prior to delivery unless otherwise agreed in advance and in writing.
8. Passage of Risk
1. The risk of accidental loss and accidental deterioration shall pass to the Customer as soon as the products have been handed over to the person carrying out the transport or have left the warehouse of SCHMALZ for purposes of shipping. If the Customer collects the products, the risk of accidental loss and accidental deterioration shall pass to the Customer upon notification of readiness for collection. The foregoing sentences 1 and 2 shall also apply for partial deliveries or if SCHMALZ has assumed additional services, e.g. transportation of the products to the Customer's site.
2. If the Customer enters into default in accepting the products, SCHMALZ is entitled to demand compensation for the damage incurred, including possible additional expenses. The same applies if the Customer violates any other cooperation duties unless the Customer is not responsible for the same. In particular, SCHMALZ is entitled to place the products into storage at the Customer’s expense for the duration of the default in acceptance. The costs of such storage shall be charged at a flat rate of 0.5% of the net invoice value per calendar week commenced. This does not affect any claims of SCHMALZ going above and beyond this. The Customer has the right to furnish evidence that SCHMALZ did not incur any costs or that such costs were lower. The same applies if the Customer breaches other cooperation duties unless the Customer is not responsible for the breach. If the Customer enters into default in accepting the products or violates any other co-operation duties, the risk of accidental loss and accidental deterioration of the products shall pass to the Customer no later than at the time it enters into default of acceptance. Upon the fruitless expiry of a reasonable grace period set by SCHMALZ, SCHMALZ is entitled to otherwise dispose of the products and to supply the Customer within a reasonably extended period.
3. If shipping is delayed due to circumstances beyond SCHMALZ’s control, the risk shall pass to the Customer upon notification of readiness for shipping.
4. The delivered products must be accepted by the Customer even if they have minor defects, without this affecting its claims based on defects.
9. Claims based on Defects
1. The Customer’s rights to assert claims based on defects is conditional upon the Customer having inspected the delivered products upon receipt also by means of sample processing or use insofar as this can be reasonably expected, and notifying SCHMALZ of any apparent defects in writing (e.g. by letter, fax or e-mail) and without delay, but no later than two weeks from receipt of the products. Latent defects must be reported to SCHMALZ in writing immediately upon discovery. When notifying SCHMALZ of said defects, the Customer must provide a written description of the defects. Claims based on defects asserted by the Customer also require that it observed the specifications, instructions, guidelines and conditions set forth in the technical instructions and other documents from SCHMALZ for the individual products. Claims based on defects attributable to failure to comply with such instructions and stipulatation are excluded.
2. If the products are defective, SCHMALZ shall at its discretion render subsequent performance either by rectifying the defect or by delivering a defect-free product. When rendering subsequent performance, SCHMALZ is required to bear all expenses incurred to this end, in particular transport, shipping, personnel, and material costs. Replaced parts pass into the ownership of SCHMALZ and shall be returned to it.
3. If SCHMALZ is unwilling or unable to render subsequent performance, the Customer may, without prejudice to any claims for damages or reimbursement of expenses, at its discretion either rescind the contract or reduce the delivery price. The same shall apply in the event that subsequent performance fails, is unreasonable for the Customer, or is unreasonably delayed for reasons attributable to SCHMALZ.
4. The Customer’s right to rescind the contract is excluded if the Customer is unable to return the performance received and this is not attributable to the fact that return is impossible due to the nature of the performance received, or SCHMALZ is responsible for the return, or the defect was not revealed until the product was processed or modified. The right to rescind is also excluded if SCHMALZ is not responsible for the defect and if the Customer is required to compensate the value instead of returning the performance.
5. The assertion of claims based on defects is excluded if the defect is attributable to natural wear and tear, particularly in wearing parts, improper handling, operation, or storage or improper modifications or repairs of the products by the Customer or third parties. The same shall apply to defects attributable to the Customer or resulting from a technical cause other than the original defect.
6. Claims of the Customer for reimbursement of expenses instead of claims for damages in lieu of performance are excluded unless a reasonable third party would also have incurred such expenses.
7. Unless otherwise agreed in writing, SCHMALZ does not assume any warranty, in particular any warranty as to quality or durability.
8. The limitation period for claims based on defects asserted by the Customer is one year unless the supply chain ends with a consumer goods purchase. If the defective products have been used in accordance with their intended purpose for a structure and have caused its defectiveness or there is a defect in a structure, the limitation period is five years. This limitation period shall also apply to claims in tort based on a defect of the products. The limitation period begins when the products are delivered. The shortened limitation period shall not apply to the unlimited liability of SCHMALZ for damages resulting from a breach of a guarantee or from harm to life, physical injury, or harm to health, for intentional acts and gross negligence, and for product defects or insofar as SCHMALZ has assumed a procurement risk. Any comment of SCHMALZ on a claim based on defects asserted by the Customer shall not constitute an opening of negotiations concerning such claim or the facts giving rise to the claim, provided SCHMALZ rejects the claim based on defects in full.
10. Defects in Title
1. SCHMALZ warrants that there are no third-party rights precluding the contractually agreed use of the Software by the Customer. In the case of defects in title, SCHMALZ shall provide warranty by procuring for the Customer at the latter’s discretion either a legal defect-free right of use in the Software or in equivalent software.
2. The Customer shall notify SCHMALZ without delay and in writing if third parties assert claims in the Software (e.g. copyright or patent). SCHMALZ shall support the Customer in defending against such third-party claims by providing information and advice.
3. The provisions of Section 9 otherwise apply mutatis mutandis to any legal defects.
11. Liability of SCHMALZ
1. SCHMALZ is liable without limitation for damages resulting from a breach of guarantee or from harm to life, physical injury, or harm to health. The same applies with respect to intentional acts and gross negligence or insofar as SCHMALZ has assumed a procurement risk. SCHMALZ is liable for slight negligence only if material duties are violated, such duties arising out of the nature of the contract and being of essential importance for the attainment of the contractual purpose. In the event of the breach of such duties and in case of default and frustration of contract, SCHMALZ’s liability is limited to typically foreseeable damages within the context of the contract. Mandatory statutory liability for product defects remains unaffected.
2. To the extent that SCHMALZ’s liability is excluded or limited, this shall also apply for the personal liability of the employees, staff, representatives, and agents of SCHMALZ.
12. Product Liability
1. The Customer will not modify the products; in particular, it will not modify or remove existing warnings about risks due to improper handling of the products. In the event of the breach of this obligation, the Customer shall in the internal relationship indemnify SCHMALZ from and against any and all product liability claims asserted by third parties unless the Customer is not responsible for the modification of the products.
2. In the event that SCHMALZ has to implement a product recall or issue a warning notice due to a defect in the products, the Customer shall take best efforts to support SCHMALZ and participate in all measures that SCHMALZ deems reasonable and expedient; in particular, the Customer will procure the necessary Customer information. The Customer shall bear the costs of the product recall or warning notice unless it is not responsible for the defect in the products and the loss incurred pursuant to the principles of product liability law. Further claims of SCHMALZ shall remain unaffected.
3. The Customer must without delay notify SCHMALZ, in writing (e.g. by letter, fax or e-mail), of any and all risks in connection with the use of the products and any possible defects in the products of which it becomes aware.
13. Force Majeure
1.Insofar as SCHMALZ is hindered in fulfilling its contractual obligations, especially in delivering the products, by force majeure, SCHMALZ shall be freed of its contractual obligations for the duration of the hindrance and a reasonable additional start-up period without being obligated to compensate the purchaser for damages. The same applies in the event that unforeseen circumstances or circumstances outside of SCHMALZ’s control such as labor disputes, pandemics, epidemics, measures taken by government authorities, energy shortages, delivery disruptions from its suppliers, or significant disruptions to operations, in particular cyber attacks, make it unreasonably difficult or temporarily impossible for SCHMALZ to fulfill its obligations. This shall also apply if the aforementioned circumstances occur at a sub-supplier. This shall also apply if SCHMALZ is already in default. If SCHMALZ is released from its obligation to deliver, SCHMALZ shall refund any advance payments made by the purchaser.
2. On expiry of a reasonable grace period, SCHMALZ shall be entitled to rescind the contract if such impediment continues for more than four months and the performance of the contract is no longer of interest to SCHMALZ due to such hindrance. At the Customer's request, SCHMALZ will on expiry of such grace period declare whether it intends to exercise its right of rescission or whether it will deliver the products within a reasonable period.
14. Retention of Title
1. SCHMALZ retains title in the delivered products until such time as the purchase price and any and all claims to which SCHMALZ is entitled against the Customer under their business relationship have been settled in full. For the duration of the retention of title, the Customer shall handle the products subject to retention with due care. It shall, in particular, sufficiently insure the products subject to retention at its own expense at replacement value against fire, water, and theft damage. At SCHMALZ’s request, the Customer shall provide proof of the insurance policy. The Customer assigns to SCHMALZ, with effect as from today, all claims for compensation under such insurance. SCHMALZ hereby accepts such assignment with effect as from today. If the insurance agreement does not permit such assignment, the Customer instructs the insurance company herewith to make payments exclusively to SCHMALZ. This shall not affect any further claims to which SCHMALZ is entitled.
2. The Customer is permitted to sell the products subject to retention of title only in the ordinary course of business. The Customer shall not be entitled to pledge the products subject to retention of title, to assign them by way of security or to otherwise dispose of them in a way that could jeopardise SCHMALZ’s title to the goods. The Customer must notify SCHMALZ without delay and in writing (e.g. by letter, fax or e-mail) of any attachment or other intervention by a third party, provide all information required, inform the third party of SCHMALZ’s title to the goods, and assist in all measures undertaken by SCHMALZ in order to protect the products subject to retention of title. To the extent the third party is not able to reimburse to SCHMALZ the judicial and extrajudicial costs for enforcing SCHMALZ’s title, the Customer shall reimburse SCHMALZ the loss sustained by SCHMALZ in this connection unless the Customer is not responsible for the breach of duty.
3. The Customer assigns to SCHMALZ, with effect as from today, all claims in connection with the resale of the products together with any and all ancillary rights, irrespective of whether the products subject to retention were resold prior to or after processing. SCHMALZ accepts such assignment with effect as from today. If such assignment is not permissible, the Customer herewith instructs the third-party debtor to make payments exclusively SCHMALZ. The Customer shall be authorised, such authorisation subject to revocation, to collect the claims assigned to SCHMALZ in trust for SCHMALZ in the Customer's own name. The amounts collected shall be transferred to SCHMALZ immediately. SCHMALZ may revoke the Customer's authorization for collection and resale for cause, in particular if the Customer fails to duly meet its payment obligations vis-à-vis SCHMALZ, defaults or ceases payment, or if the Customer files for the opening of insolvency proceedings or similar debt settlement proceedings in respect of its own assets, or if the request for the opening of insolvency or comparable proceedings in respect of the Customer's assets filed by a third party is refused due to lack of assets. In the event of a blanket assignment by the Customer, the claims assigned to SCHMALZ shall be explicitly exempted.
4. At SCHMALZ’s request, the Customer shall promptly notify the third-party debtor of the assignment and provide SCHMALZ with any information and documents required for collection..
5. If the Customer is in breach of the terms of the contract, in particular if it defaults in payment, SCHMALZ shall, without prejudice to its other rights, be entitled to rescind the contract after a reasonable grace period set by SCHMALZ. The Customer shall without delay grant SCHMALZ or its authorised agents access to the products subject to retention of title and return the same. After due and timely notice, SCHMALZ may otherwise dispose of the products subject to retention of title in order to satisfy its due claims against the Customer.
6. The processing or remodelling by the Customer of the products subject to retention of title shall always be carried out for SCHMALZ. The Customer's expectancy right to the products subject to retention of title shall also apply to the processed or remodelled item. Should the products be processed or remodelled together with other objects not owned by SCHMALZ, SCHMALZ shall acquire joint title in the new item in the proportion of the value of the delivered products to the other processed items at the time of such processing or remodelling. The same shall apply if the products are connected or mixed with other items not owned by SCHMALZ in such manner that SCHMALZ loses full ownership. The Customer shall keep the new objects for SCHMALZ. In all other regards, the item created through processing or re-construction, as well as connection or mixing, is subject to the same provisions as the products that are subject to the retention of title.
7. If, taking into account standard valuation adjustments by the banks, the realisable value of the securities exceeds the claims of SCHMALZ arising from the business relationship with the Customer by more than 10%, SCHMALZ shall at the Customer's request be required to this extent to release the securities to which the Customer is entitled. The valuation should be based on the invoice value of the products subject to retention of title and on the nominal value of the claims. The choice of the security to be released is incumbent upon SCHMALZ in each case.
8. In the case of delivery to other legal systems in which the foregoing provisions on the retention of title do not have the same effect as in the Federal Republic of Germany, the Customer hereby grants SCHMALZ a corresponding security right. The Customer will take all further measures that are necessary in this respect to grant SCHMALZ such corresponding security interest. The Customer shall assist in all measures necessary or conducive for the effectiveness and enforceability of such security interests.
1. If SCHMALZ is commissioned not only with the supply of products, but also with assembly, this shall be carried out on the basis of a separate independent contract for work and services.
2. Such assembly contract is subject to the specific written assembly instructions issued by SCHMALZ.
1. The parties undertake to keep confidential and neither to record, disclose, or use any information that becomes available to them and is designated confidential or which can be identified as business or trade secrets based on other circumstances for five years from delivery, unless required for the business relationship.
2. The confidentiality obligation shall not apply if the information was demonstrably already known to the other party prior to the commencement of the contractual relationship, was generally known or publicly available or becomes generally known through no fault of the other party. The burden of proof is incumbent upon the recipient.
3. The parties shall ensure by way of appropriate contractual agreements with their employees and agents, in particular their freelance employees and service providers that they, too, refrain for the period of five years from delivery from any and all private use, disclosure or unauthorised recording of such business and trade secrets.
17. Data Protection
1. The parties are under an obligation to comply with the statutory provisions on data protection, specifically the EU General Data Protection Regulation (GDPR) when executing the contract and to ensure that their employees also comply with these provisions.
2. The parties process the personal information (name and contact information of the contacts in each case) solely for the purposes of fulfilling the agreement and shall implement appropriate technical safety measures to protect this information (Art. 32 GDPR) that correspond to the current state of the art. The parties must delete the personal information as soon as the processing thereof is no longer necessary. This does not affect any statutory storage obligations.
3. If in the course of the execution of the contract, SCHMALZ processes personal information on behalf of the Customer, the parties shall conclude a separate contract processing agreement pursuant to Art. 28 GDPR.
18. Legal compliance
1. Within the scope of their corporate responsibility, the parties each undertake to ensure compliance with all applicable statutory provisions in or in connection with the conduct of their business (including environmental protection laws and labor regulations/laws, particularly with regard to employee health and safety) and that child labor and forced labor are not tolerated.
2. In addition, both parties shall confirm upon the conclusion of a contract that they will not participate in any form of bribery or corruption and will not tolerate the same.
19. Final Provisions
1. The assignment of rights and duties of the Customer to third parties is subject to the prior written consent of SCHMALZ.
2. Counterclaims of the Customer entitle it to set-off only if such claims have been conclusively legally determined or are uncontested. The Customer may assert a retention right only if its counterclaim is based on the same contractual relationship.
3. The legal relationship between the Customer and SCHMALZ shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
4. The exclusive place of jurisdiction for all disputes arising in connection with the business dealings between SCHMALZ and the Customer is the registered seat of SCHMALZ. SCHMALZ is also entitled to file an action at the registered seat of the Customer and at any other permissible legal venue. Arbitration clauses shall not apply.
5. Unless otherwise agreed, the place of performance for all obligations of the Customer and SCHMALZ is SCHMALZ’s registered seat.
6. The language of the contract is German.
7. Should any provision of these General Terms and Conditions of Sale be or become invalid or unenforceable, in whole or in part or should there prove to be a gap in these General Terms and Conditions of Sale, this shall not affect the validity of the remainder of the provisions. In place of the invalid or unenforceable provision the valid or enforceable provision is deemed agreed that comes as close as possible to attaining the purpose of the invalid or unenforceable provision. In the case of a gap, the provision is deemed agreed that corresponds to what the parties would have agreed, in light of the purpose of these General Terms and Conditions of Sale, had they considered the matter from the outset.