§ 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
(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
(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
§ 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
(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
(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:
own intentional or grossly negligent breach of duty and intentional or grossly
negligent breach of duty by legal representatives or vicarious agents;
the breach of material contractual obligations; "material contractual
obligations" are those whose fulfilment characterizes the Agreement and on
which the customer can rely;
the case of injury to body, life and health, also by legal representatives or
the event of default, provided a fixed delivery and / or fixed performance time
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);
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
(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
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) Our company regularly
checks your creditworthiness when concluding contracts and, in certain cases
where there is a legitimate interest, also for existing customers. For this
purpose, we work together with Creditreform Boniversum GmbH, Hammfelddamm 13,
41460 Neuss, Germany, from whom we receive the data required for this purpose.
For this purpose, we transmit your name and contact details to Creditreform
Boniversum GmbH. The information pursuant to Art. 14 of the EU General Data
Protection Regulation on the data processing carried out by Creditreform
Boniversum GmbH can be found here:
(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
(3) The customer shall check,
ensure and provide documentary evidence to us upon request that
products provided are not intended for an armaments-related, nuclear or
companies and persons named in the US Denied Persons List (DPL) are supplied
with US-originating goods, US software and US technology;
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;
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
military recipients are supplied with the products we have delivered;
recipients are being supplied with this if they have violated other export
control regulations, in particular those of the EU or the ASEAN countries;
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