(V.1.2)
§ 1 General
Provisions, Scope
(1) The following terms and conditions of
delivery and payment (in short: TERMS) apply to all deliveries and services to
be provided by us, Schmitter Hydraulik GmbH. The TERMS only apply if the
customer is a Contractor (Section 14 BGB), a legal entity under public law or a
special fund under public law.
(2) These TERMS apply exclusively. The customer's
deviating, conflicting or supplementary General Terms and Conditions only
become part of the Agreement if and to the extent that we have expressly agreed
to their validity in writing. This consent requirement applies in any case, for
example even if we provide our service without reservation in knowledge of the
customer's General Terms and Conditions.
(3) Individual agreements made with the customer
on a case-by-case basis (including side agreements, supplements and amendments)
always take precedence over these TERMS. The content of such agreements shall
be determined by a written contract resp. our written confirmation, subject to
evidence to the contrary.
(4) Unless otherwise agreed, the TERMS shall
apply in the written form that is valid at the time of the customer's order or
the last version communicated to the customer as a master agreement also for
similar future Agreements, without our having to refer to them again in each
individual case.
(5) Our offers are without engagement. The
presentation of services on our website does not constitute a legally binding
offer. The agreement on the delivery or service is only concluded through the
(express or implied) declaration of acceptance or the confirmation of the
customer's offer by Schmitter Hydraulik GmbH.
(6) If we issue an order confirmation, it shall become
part of the Agreement. In this case, the customer is obliged to check the
factual correctness of the order confirmation after it has been received.
§ 2 Delivery
(1) If an order
confirmation is issued, the scope of delivery shall be based on the order
confirmation.
(2) Deviations in
dimension, weight and / or quantity within the scope of customary tolerances
are permissible.
(3) The indication
of a delivery time is only approximate and to the best of our judgment.
Delivery times are only binding if they have been expressly agreed or if we
have promised a binding delivery time in the order confirmation.
(4) We reserve
the right to change the specifications of the goods insofar as legal
requirements make this necessary, provided that this change does not lead to
any deterioration in terms of quality and usability for the usual purpose and,
if the suitability for a specific purpose has been agreed, for this purpose. We
are also entitled to deliver products with customary deviations in quality,
dimensions, weight, colour and equipment. Such goods are deemed to be in
accordance with the Agreement.
(5) Partial
deliveries are permitted if this is reasonable for the customer. A partial
delivery is reasonable for the customer if it can be used by the customer
within the scope of the contractual intended purpose, the delivery of the
remaining goods is ensured and the customer does not incur any additional costs
as a result of the partial delivery.
§ 3 Prices and
Payment Conditions
(1) The prices quoted by us are ex works or distribution
depot plus packaging and shipping costs and the applicable turnover tax.
(2) Unless otherwise agreed, the customer shall
be invoiced for packaging, shipping and freight costs in accordance with Schmitter
Hydraulik GmbH's prices applicable at the time of delivery of the goods plus
any additional ancillary costs.
(3) The reusable packaging used for shipping
must be returned to us. Alternatively, the customer is entitled to hand over
reusable packaging of the same type, quantity and quality to Schmitter
Hydraulik GmbH in exchange for the reusable packaging used for shipping. If the
reusable packaging is not returned or given in exchange, the customer shall be
billed separately for the reusable packaging used for shipping.
(4) All other transport aids and other packaging
shall not be taken back. The customer is obliged to dispose of the packaging at
its own expense.
(5) Unless otherwise agreed, our invoices are
due within 14 days of receipt of the invoice and receipt of the goods without
any deductions.
(6) The deduction of an early payment discount
requires a special written agreement. An early payment discount is not granted
if the customer is paying for earlier deliveries.
(7) Bills of exchange shall only be accepted
after prior written agreement. In this case, the customer shall bear the early
payment discount charges and other costs that Schmitter Hydraulik GmbH incurs
in connection with the acceptance and redemption of the bills of exchange.
Payment is only deemed to have been made when the amount owed has been
irrevocably credited to us.
(8) The customer is only entitled to set off,
withhold and object to the unfulfilled Agreement if the counterclaims have been
legally established, recognized or are undisputed. In the event of deficiencies
in the service, the customer's opposing rights remain unaffected. The
customer's right to set off against counterclaims remains unrestricted insofar
as its set-off claim is linked in a synallagmatic contract with the principal
claim.
(9) Schmitter Hydraulik GmbH is entitled to
increase the remuneration unilaterally in the event of an increase in material
production and / or material and / or product procurement costs, payroll and
ancillary wage costs, social security contributions as well as energy costs and
costs due to environmental regulations, and / or currency regulations and / or
customs changes, and / or freight rates and / or public charges, to increase
taxes accordingly if these directly or indirectly influence the production or
procurement costs or the costs of the contractually agreed services and if more
than 4 months lie between the conclusion of the Agreement and the delivery. An
increase in the aforementioned sense is excluded insofar as the cost increase
for some or all of the aforementioned factors is cancelled out by a cost
reduction for other of the aforementioned factors in relation to the total cost
burden for the delivery. If the aforementioned cost factors are reduced without
the cost reduction being set off by the increase in other of the aforementioned
cost factors, the cost reduction must be passed on to the customer as part of a
price reduction. If the new price is 20 percent or more above the original
price due to the aforementioned right to adjust prices, the customer is
entitled to withdraw from Agreements that have not yet been fully fulfilled.
However, it may only assert this right without undue delay after notification
of the increased price.
§ 4 Delivery
Times, Default
(1) If a
delivery period has been agreed, this shall begin on the day after receipt of
our order confirmation or declaration of acceptance. If the delivery of the
goods to the customer requires the transmission of necessary technical
parameters and information by the customer, clarification of technical details
or other clarification of the execution details, the agreed delivery time shall
not begin to run before the necessary technical parameters and information have
been completely transmitted or the technical details or other implementation
details have been fully clarified.
(2) We receive deliveries or services from our
suppliers for reasons for which we are not responsible for the provision of our
contractual delivery or service owed despite proper and sufficient coverage
prior to the conclusion of the Agreement with the customer according to the
quantity and quality under our delivery or service agreement with the customer
(congruent coverage ) not, not correctly or not on time or if events of force
majeure of not inconsiderable duration (i.e., lasting longer than 14 calendar
days) occur, we shall inform our customers about this in good time in writing
or in text form. In this case we are entitled to postpone the delivery or
service for the duration of the hindrance or withdraw from the Agreement in
whole or in part because of the not yet fulfilled part, provided that we have
complied with our foregoing duty to inform and have no assumed the procurement
risk in accordance with Section 276 of the German Civil Code (BGB) or a
delivery or performance guarantee. Force majeure is considered to be equivalent
to: strikes, lockouts, official interventions, energy and raw material
shortages, transport bottlenecks or obstacles through no fault of our own,
operational hindrances through no fault of our own (e.g., due to fire, water
and machine damage) and all other hindrances that, from an objective point of
view, were not culpably caused by us.
(3) If a delivery and / or service date or a
delivery and / or service period is agreed with binding force and if the agreed
delivery date or the agreed delivery period is exceeded due to events in
accordance with paragraph 2, the customer is entitled to withdraw from the Agreement
after the unsuccessful expiry of a reasonable grace period because of the not
yet fulfilled part. Paragraph (6) applies. The customer's further claims,
especially claims for damages, are excluded in this case.
(4) The above provision in accordance with paragraph
3 applies accordingly if, for the reasons stated in paragraph 2, the customer
cannot reasonably be expected to continue to adhere to the Agreement even
without a contractual agreement of a fixed delivery date.
(5) In the event that we are in default of
delivery, the customer must set us a reasonable grace period - if provided by
law. If this period expires, the customer is entitled to demand compensation
instead of fulfilment in accordance with the regulation in § 7 and withdraw
from the Agreement.
(6) In the event of a delay in delivery, the
customer may - if it can plausibly demonstrate that it has suffered damage as a
result - claim compensation for each full week of delay of 0.5%, but in total
up to a maximum of 5% of the value of the delivery as a lump-sum claim for
damages. Further claims due to delay in delivery shall exist only in accordance
with the regulation in § 7.
§ 5 Transfer of
Risk
(1) The risk of accidental loss or accidental
deterioration shall be transferred to the customer with agreed collection
obligation upon the handover of the products to be delivered to the customer,
with the agreed shipping obligation upon the transfer to the forwarding agent,
the carrier or the company otherwise designated to carry out the shipment, but
at the latest at the time when the produces to be delivered leave our factory
or our warehouse, or our branch or the manufacturing plant, unless an
obligation to deliver has been agreed. In the event of an obligation to deliver,
the risk shall be transferred to the customer upon delivery at the agreed
location. The above also applies if an agreed partial delivery is made.
(2) Unless otherwise agreed in writing, delivery
shall be made ex works Incoterms 2020. In the event of an obligation to collect
or send the goods, the goods shall travel at the customer's risk and expense.
(3) Schmitter
Hydraulik GmbH shall take out transport insurance which protects the goods
against the usual transport risks at the customer's expense.
§ 6 Liability
for Defects
(1) The customer is obliged to examine the
deliveries without undue delay in accordance with Section 377 of the German
Commercial Code (HGB) and issue any notifications of defects in writing.
Complaints due to obviously recognizable defects, wrong deliveries or quantity
errors must be reported to us in writing without undue delay, but no later than
within one calendar week after receipt of the goods.
(2) Other defects must be reported in writing
without undue delay after they are discovered.
(3) We are liable within the scope of the
statutory claims for defects for defects that exist at the time of transfer of
risk, in accordance with the following regulations.
(4) Unless otherwise expressly
agreed, we provide a guarantee for material defects for a period of 12 months,
calculated from the day of the transfer of risk, in the case of the customer's
refusal to inspect or accept the goods, from the time the user receives the
notification of readiness for acceptance of the goods. This does not apply to
claims for damages under a guarantee, the assumption of a procurement risk
within the meaning of Section 276 BGB, claims due to injury to life, body or
health, malicious, wilful, or grossly negligent action on our part, or if in
the cases of Section 478 BGB (Recourse in the supply chain with the consumer as
the end customer), Section 438 (1) No. 2 BGB (construction of buildings and
delivery of items for buildings) and Section 634a (1) No. 2 BGB (construction
defects) or if a longer limitation period is otherwise stipulated by law. Section
305b BGB (priority of the individual agreement) remains unaffected. A reversal
of the burden of proof is not associated with the above regulation.
(5) Unless otherwise agreed, only our
information in the order confirmation, the product description or information
that we have given in the form of a separate confirmation shall apply as the
agreed quality of the delivery item. In the event of contradictions between the
order confirmation, the product description and a separate confirmation, the
separate confirmation shall be decisive. In the event of a contradiction
between the order confirmation and the product description, the order
confirmation shall be decisive. The customer shall not receive any guarantees
from us in the legal sense, unless these are expressly designated as such. A
reference to DIN standards only serves to describe the goods and does not
constitute a guarantee.
(6) Our warranty (claims from breaches of duty
in the form of poor performance in the event of material defects) and the
liability resulting therefrom are excluded, insofar as defects and associated
damage cannot be proven on defective material, defective construction,
defective workmanship, defective manufacturing materials or, if owed,
inadequate instructions for use. In
particular, the warranty and the resulting liability due to material defects
are excluded for the consequences of incorrect use, unsuitable storage
conditions, and for the consequences of chemical, electromagnetic, mechanical
or electrolytic influences that do not correspond to the product description in
our product description or a differently agreed product specification or the
average standard influences provided for in our product description or a
differently agreed product specification or the respective product-specific
data sheet on our part or on the part of the manufacturer. The above does not
apply to fraudulent, grossly negligent or wilful acts on our part, or to injury
to life, limb or health, the assumption of a guarantee, a procurement risk in
accordance with Section 276 of the German Civil Code (BGB) or liability under a
statutory mandatory liability provision. Claims for defects do not exist in the
case of only insignificant deviations from the agreed or customary quality or
usability. If the customer or a third party improperly repairs the delivered
products, there shall be no liability on our part for the resulting
consequences.
(7) The recognition of breaches of duty in the
form of material defects must always be in writing. Section 305b BGB (priority
of the individual agreement) remains unaffected.
(8) The customer's further claims due to or in
connection with defects or consequential damage caused by defects, for whatever
reason, only exist in accordance with the provisions in § 7 of our TERMS.
§ 7 Other Claims
for Damages
(1) Subject to the following exceptions, we are
not liable, in particular not for the customer's claims for damages or
reimbursement of expenses, regardless of the legal reason, in the event of a
breach of obligations arising from the contractual relationship.
(2) The foregoing exclusion of liability in
accordance with paragraph 1 does not apply:
- - for own intentional or
grossly negligent breach of duty and intentional or grossly negligent breach of
duty by legal representatives or vicarious agents;
-
- for the breach of material
contractual obligations; "material contractual obligations" are those
whose fulfilment characterizes the Agreement and on which the customer can rely;
-
- in the case of injury to
body, life and health, also by legal representatives or vicarious agents;
-
- in the event of default,
provided a fixed delivery and / or fixed performance time was agreed;
-
- if we have assumed the
guarantee for the quality of our goods or the existence of a successful
performance or a procurement risk within the meaning of Section 276 of the
German Civil Code (BGB);
-
- in the case of mandatory
statutory liability, in particular under the Product Liability Act [Produkthaftungsgesetz].
(3) In the event that we or our vicarious agents
are only responsible for slight negligence and there is no case of the above
paragraph 2, 4th, 5th and 6th indent there, we are only liable for the
foreseeable damage typical under the Agreement, even in the event of a breach
of material contractual obligations.
(4) The amount of our liability for each
individual case of damage is limited to a maximum liability amount of EUR 10,000.00.
This does not apply if we are guilty of malice, intent or gross negligence, for
claims due to injury to life, limb or health as well as in the case of a claim,
which is based on a tortious act or a guarantee or the assumption of a
procurement risk in accordance with Section 276 of the German Civil Code (BGB)
or, in cases of legally binding higher amounts of liability. Any further
liability is excluded.
(5) The exclusions or limitations of liability
in accordance with paragraph 1-4 above apply to the same extent in favour of
our executive bodies, our executive and non-executive employees and other
vicarious agents as well as our subcontractors.
(6) A reversal of the burden of proof is not
associated with the above regulations.
§ 8 Retention of
Title
(1) The delivery
items (goods subject to retention of title) shall remain our property until all
claims to which we are entitled against the customer under the business
relationship have been met in full. If a current account relationship has been
agreed between the customer and us, the retention of title also refers to the
recognized balance in each case. The same applies if a balance is not
recognized, but a balance is drawn, because, for example, the customer goes
into bankruptcy or liquidation.
(2) While the
retention of title exists, the customer is prohibited from pledging or
transferring ownership by way of security. The customer is permitted to resell the
goods in the ordinary course of business on condition that it receives payment
from its customer or makes the reservation that ownership shall only be transferred
to the customer when it has fulfilled its payment obligations.
(3) As a
precaution, the customer hereby assigns to us in full the claims arising from a
resale or any other legal reason (e.g., insurance contract, tort) with regard
to the goods subject to retention of title. We accept the assignment. If we are
only entitled to co-ownership, only the partial amount of the claim that
corresponds to the value of the item belonging to us or our share of
co-ownership at the time the claim arises shall be assigned to us.
(4) The customer
is entitled to collect this claim as long as it is not in default of payment.
As soon as this happens, we are entitled to revoke the direct debit
authorization. In this case, the customer is obliged to provide us with all
necessary information so that we are able to collect the claim against the
customer ourselves. We are entitled to revoke the resale and collection
authorization if the customer has significant financial difficulties or has
filed for bankruptcy or liquidation proceedings. In this case, we may assert
the assigned claims and entitlements immediately.
(5) In the
ordinary course of business, it is permitted to combine the goods subject to
retention of titles with other items in such a way that they become essential
parts of a uniform item.
The items
subject to retention of title may also be mixed or blended directly with other
movable items or converted into a new movable item by processing or
remodelling. Unless we become the sole owner in accordance with Section 947 of
the German Civil Code (BGB), in these cases we acquire co-ownership when the
new item is created. Our co-ownership share shall be determined by the ratio of
the price for the item delivered by us to the value of the new item created by
combining, mixing, processing or remodelling at the time of its creation.
The customer
undertakes to transfer co-ownership to us in cases in which an item not
delivered by us is to be regarded as the main item.
(6) The customer
is obliged to treat the goods subject to retention of title with care; in
particular, it is obliged to insure them adequately at replacement value
against fire, water and theft at its own expense.
(7) In the event
of seizure or other access by third parties to the objects owned by us or to
the claims and entitlements assigned to us, the customer must notify us in
writing without undue delay. The same applies if damage occurs to these objects.
(8) We undertake
to release the securities to which we are entitled at the customer's request
insofar as the value of all security interests to which we are entitled exceeds
the amount of all claims to be secured by more than 20% over an extended period
of time. Schmitter Hydraulik GmbH is responsible for selecting the securities
to be released.
§ 9 Storage/Processing
of Customer Data
(1) We are
entitled to use data processing systems to record, save and process data
entrusted to us by the customer within the framework of the contractual
relationship in compliance with data protection regulations and pass them on
within the scope of the implementation of the Agreement.
(2) We regularly
check the creditworthiness of existing customers when Agreements are concluded
and in certain cases in which there is a legitimate interest. To this end, we
work with Creditreform Würzburg Bauer & Polyak KG (Creditreform for short),
Martin Luther Str. 2, 97027 Würzburg, from whom we receive the necessary data.
For this purpose, we transmit the customer's name and contact details to
Creditreform. The information in accordance with Article 14 of the EU General Data
Protection Regulation on the data processing that takes place at Creditreform
is published and available on the Internet at www.boniversum.de/eu
dsgvo/.
(3) The legally
required information on data protection in our company and the customer's rights
are published and available on the Internet on our website at www.schmitter-hydraulik.de/datenschutz/.
§ 10 Export
control
(1) In the absence of any deviating contractual
agreements with the customer, the delivered goods are intended to be placed on
the market for the first time by the customer within the Federal Republic of
Germany or, in the case of delivery outside of the Federal Republic of Germany,
to the agreed country of first delivery (first country of delivery).
(2) The export of certain goods by the customer
from there may, for example, be subject to approval due to their type or
purpose or end-use. The customer is obliged to check this and comply with the
export regulations and embargoes relevant for these goods, in particular of the
European Union (EU), the Federal Republic of Germany or other EU member states
and, if applicable, the USA or ASEAN states and all third countries affected
during import or export, insofar as it exports the products supplied by us from
the country of first delivery or has these exported through third parties.
(3) The customer shall check, ensure and provide
documentary evidence to us upon request that
-
the products provided are
not intended for an armaments-related, nuclear or weapon-related use;
-
no companies and persons
named in the US Denied Persons List (DPL) are supplied with US-originating
goods, US software and US technology;
-
no companies and persons
named in the US Warning List, US Entity List or US Specially Designated
Nationals List are supplied with products of US origin without the relevant
approval;
-
no companies or persons
named in the list of Specially Designated Terrorists, Foreign Terrorist
Organizations, Specially Designated Global Terrorists or the EU terrorist list,
or other relevant negative lists for export control, are supplied;
-
no military recipients are
supplied with the products we have delivered;
-
no recipients are being
supplied with this if they have violated other export control regulations, in
particular those of the EU or the ASEAN countries;
-
all early warning notices
of the responsible German or national authorities of the respective country of
first delivery of the delivery are observed.
(4) In the case of an agreed delivery outside of
the Federal Republic of Germany, the customer ensures at its own expense that
all national import regulations of the country of first delivery shall be met
with regard to the goods to be delivered by us.
(5) The customer shall indemnify us against all
damage and expenses resulting from the culpable violation of the above
obligations in accordance with paragraph 1 4.
§ 11 Legal Venue,
Miscellaneous
(1) If the contracting parties are traders
within the meaning of the German Commercial Code, legal entities under public
law or special funds under public law, the exclusive - also international -
place of jurisdiction for all disputes arising directly or indirectly from and
in connection with the contractual relationship shall be the registered office
of Schmitter Hydraulik GmbH. However, we are also entitled to bring a legal
action against the customer at its general place of jurisdiction. Mandatory
statutory provisions on exclusive places of jurisdiction remain unaffected by
this regulation.
(2) Our place of business is the place of
performance, unless otherwise stated in the order confirmation.
(3) For all legal relationships between the contracting
parties arising from and in connection with this Agreement, the law of the
Federal Republic of Germany shall apply exclusively to the exclusion of uniform
international law, in particular the UN Sales Convention (CISG). If this law
refers to foreign legal systems, such references are invalid.
(4) The prerequisites and effects of the
retention of title according to § 8 are subject to the law at the respective
location of the issue, insofar as the choice of law made in favour of German
law is inadmissible or invalid.
(5) The written form within the meaning of these
TERMS is sufficient for transmission by fax, email or an exchange of letters.
§ 12 Severability
Clause
(1) Should one provision of this Agreement be or become invalid / void in
whole or in part or not feasible for reasons of the law of the General Terms
and Conditions according to Sections 305 310 BGB, the legal regulations shall apply.
(2) Should a current or future provision of the Agreement be or become
wholly or partially ineffective / void or not feasible for reasons other than
the provisions relating to the law of the General Terms and Conditions
according to Sections 305 310 BGB, the validity of the remaining provisions of
this Agreement shall not be affected and the regulations according to the
following paragraphs 3 and 4 shall apply. The same applies if there is a loophole
that needs to be filled after the conclusion of the Agreement.
(3) Contrary to a possible principle according to which a severability
clause is basically only intended to reverse the burden of proof, the validity
of the remaining contractual provisions shall be maintained under all
circumstances and thus Section 139 BGB shall be waived altogether.
(4) The parties shall replace the invalid / void / unenforceable
provision or loophole that needs to be filled for reasons other than the
provisions relating to the law of the General Terms and Conditions in
accordance with Sections 305-310 BGB with a valid provision whose legal and
economic content is invalid / void / unenforceable provision and corresponds to
the overall purpose of the Agreement. Sections 139 BGB (partial invalidity) is
expressly excluded. If the invalidity of a provision is based on a measure of
performance or time (deadline or date) specified therein, the provision must be
agreed with a legally permissible measure that comes closest to the original
measure.