General Terms and Conditions of Delivery and Payment of Schmitter Hydraulik GmbH for Business Customers
§ 1 General, scope of application
(1) The following Terms and Conditions of Delivery and Payment (in short: GTC) shall apply to all deliveries and services to be provided by us, Schmitter Hydraulik GmbH. The GTC apply only if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) These GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if we render our performance without reservation in knowledge of the customer’s general terms and conditions.
(3) Individual agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(4) Unless otherwise agreed, the GTC in the version valid at the time of the customer’s order or in any case in the version last notified to the customer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(5) Our offers are subject to change. The presentation of services on our website does not constitute a legally binding offer. The agreement on the delivery or service shall only come into effect through the (express or implied) declaration of acceptance or confirmation of the customer’s offer by Schmitter Hydraulik GmbH.
(6) If an order confirmation is issued by us, it shall become part of the contract. In this case, the customer is obliged to check the order confirmation for its factual correctness after receipt.
§ 2 Delivery
(1) If an order confirmation is issued, the scope of delivery shall be based on the order confirmation.
(2) Deviations in dimensions, weights and/or quantities within customary tolerances are permissible.
(3) The indication of a delivery date is only approximate and at our best discretion. Delivery periods are only binding if they have been expressly agreed or if we have promised a binding delivery period in the order confirmation.
(4) We reserve the right to modify the specifications of the goods insofar as legal requirements make this necessary, insofar as this modification does not cause any deterioration with regard to quality and usability for the usual purpose and, insofar as suitability for a specific purpose was agreed, for this purpose. We are further entitled to deliver products with customary deviations in quality, dimension, weight, color and equipment. Such goods shall be deemed to be in conformity with the contract.
(5) Partial deliveries are permissible insofar as this is reasonable for the customer. A partial delivery is in any case reasonable for the customer if it is usable for 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 due to the partial delivery.
§ 3 Prices and terms of payment
(1) The prices quoted by us are ex factory or ex distribution warehouse plus packaging and shipping costs and the applicable value added tax.
(2) Unless otherwise agreed, the packaging, shipping and freight costs shall be charged to the Customer in accordance with the prices of Schmitter Hydraulik GmbH valid for this purpose at the time of delivery of the goods plus freight. any other ancillary costs will be invoiced.
(3) The reusable packaging used for shipping must be returned to us. Optionally, the customer shall be entitled to hand over to Schmitter Hydraulik GmbH reusable packaging of the same type, quantity and quality in exchange for the reusable packaging used for shipment. If the reusable packaging is not returned or handed over in exchange, the customer will be charged 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 arrange for disposal of the packaging at his own expense.
(5) Unless otherwise agreed, our invoices shall be due and payable without deduction within 14 days after receipt of the invoice and receipt of the goods.
(6) The deduction of a cash discount shall require a special written agreement. No cash discount shall be granted if the customer is in arrears with the payment of previous deliveries.
(7) Bills of exchange shall only be accepted upon prior written agreement. In this case, the customer shall bear the discount charges and other costs incurred by Schmitter Hydraulik GmbH in connection with the acceptance and redemption of the bills of exchange. Payment shall not be deemed to have been made until the amount due has been irrevocably credited to us.
(8) The Customer shall only be entitled to set-off, retention and the defense of non-performance of the contract if the counterclaims have been legally established, acknowledged or are undisputed. In the event of defects in performance, the customer’s counter rights shall remain unaffected. The customer’s right to set-off shall continue to exist without restriction insofar as its set-off claim is synallagmatically linked to the main claim.
(9) Schmitter Hydraulik GmbH shall be entitled to unilaterally increase the remuneration in the event of an increase in material manufacturing and/or material and/or product procurement costs, wage and ancillary wage costs, social security contributions as well as energy costs and costs due to environmental regulations, and/or currency regulations and/or changes in customs duties, and/or freight rates and/or public charges accordingly if these directly or indirectly influence the goods manufacturing or procurement costs or costs of the contractually agreed services and if between the conclusion of the contract and delivery
General Terms and Conditions of Delivery and Payment of Schmitter Hydraulik GmbH for Business Customers
lie more than 4 months. An increase in the aforementioned sense is excluded to the extent that the cost increase in any or all of the aforementioned factors is offset by a cost reduction in other of the aforementioned factors with respect to the total cost burden for the delivery. If the aforementioned cost factors are reduced without the cost reduction being offset by an increase in other of the aforementioned cost factors, the cost reduction shall be passed on to the customer as part of a price reduction. If the new price is 20 percent or more higher than the original price due to the aforementioned price adjustment right, the customer is entitled to withdraw from contracts that have not yet been completely fulfilled. However, he may assert this right only immediately after notification of the increased price.
§ 4 Delivery Periods, Delay
(1) If a delivery period has been agreed, it shall commence on the day following 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 start before the complete transmission of the necessary technical parameters and information or the complete clarification of the technical details or other execution details.
(2) If, for reasons for which we are not responsible, we do not receive deliveries or services from our suppliers for the performance of our contractual delivery or service despite proper and sufficient coverage prior to the conclusion of the contract with the customer in accordance with the quantity and quality from our delivery or service agreement with the customer (congruent coverage), or do not receive such deliveries or services properly or in a timely manner, or if events of force majeure of a not insignificant duration (i.e. with a duration of longer than 14 calendar days) occur, we shall inform our customer of this in a timely manner in writing or in text form. In this case, we shall be entitled to postpone the delivery or service for the duration of the impediment or to withdraw from the contract in whole or in part due to the part not yet fulfilled, insofar as we have fulfilled our aforementioned duty to inform and have not assumed the procurement risk pursuant to § 276 BGB or a delivery or performance guarantee. The following shall be deemed equivalent to force majeure: strike, lockout, official interventions, shortage of energy and raw materials, 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 which, viewed objectively, have not been culpably caused by us.
(3) If a delivery and/or performance date or a delivery and/or performance period has been bindingly agreed and is not met due to events pursuant to para. 2 the agreed delivery date or the agreed delivery period is exceeded, the customer shall be entitled to withdraw from the contract in respect of the part not yet performed after a reasonable period of grace has expired without result. Para. (6) shall apply. Further claims of the customer, in particular claims for damages, are excluded in this case.
(4) The foregoing provision under par. 3 shall apply mutatis mutandis if, for the reasons set forth in par. 2, even without a contractual agreement on a fixed delivery date, it is objectively unreasonable for the customer to continue to adhere to the contract.
(5) If we are in default of delivery, the customer must – to the extent provided by law – grant us a reasonable grace period. If this period expires, the customer shall be entitled to claim damages instead of performance in accordance with the provision in § 7 and to withdraw from the contract.
(6) In the event of a delay in delivery, the customer may – provided that it can credibly demonstrate that it has suffered damage as a result – claim compensation for each full week of the delay in the amount of 0.5%, but in no case more than a total of 5% of the value of the delivery, as a lump-sum claim for damages. Further claims due to delay in delivery shall only exist in accordance with the provision in § 7.
§ 5 Transfer of risk
(1) The risk of accidental loss or accidental deterioration shall pass to the customer in the case of an agreed debt to be discharged upon handover of the products to be delivered to the customer, and in the case of an agreed debt to be discharged upon handover to the forwarding agent, the carrier or the undertakings otherwise designated to carry out the shipment, but no later than upon leaving our works or our warehouse, or our branch or the manufacturer’s works, unless a debt to be discharged upon delivery has been agreed. In the case of an obligation to deliver, the risk shall pass to the customer upon delivery to the agreed location. The foregoing shall also apply if an agreed partial delivery is made.
(2) Unless otherwise agreed in writing, delivery shall be ex works Incoterms 2020. In the case of a collection and dispatch debt, the goods travel at the risk and expense of the customer.
(3) Schmitter Hydraulik GmbH shall take out transport insurance at the Customer’s expense to cover the goods against the usual transport risks.
§ 6 Liability for defects
(1) The Customer shall be obliged to deliver the Supplies without undue delay in accordance with. § 377 HGB (German Commercial Code) and to assert any complaints in writing. Complaints due to obviously recognizable defects, incorrect deliveries or quantity errors must be notified to us in writing without delay, but at the latest within one calendar week of receipt of the goods.
(2) Other defects shall be reported in writing immediately after their discovery.
(3) We shall be liable within the scope of the statutory claims for defects for defects existing at the time of transfer of risk in accordance with the following provisions.
(4) Unless expressly agreed otherwise, we shall provide a warranty for material defects for a period of 12 months, calculated from the date of transfer of risk, and in the event of refusal of acceptance by the customer, from the date of receipt by the user of the notification of readiness for acceptance of the goods. This shall not apply to claims for damages arising from a guarantee, the assumption of a procurement risk within the meaning of § 276 BGB (German Civil Code), claims due to injury to life, limb or health, fraudulent, intentional or grossly negligent action on our part, or
General Terms and Conditions of Delivery and Payment of Schmitter Hydraulik GmbH for Business Customers
if in the cases of § 478 BGB (recourse in the supply chain with consumer as final customer), § 438 para. 1 No. 2 BGB (erection of structures and delivery of items for structures) and § 634a para. 1 No. 2 BGB (German Civil Code) (construction defects) or insofar as a longer limitation period is otherwise mandatory by law. § Section 305b of the German Civil Code (priority of the individual agreement) shall remain unaffected. A reversal of the burden of proof is not associated with the above provision.
(5) Unless otherwise agreed, only our specifications in the order confirmation, the product description or such specifications which we have given in the form of a separate confirmation shall be deemed to be the agreed quality of the delivery item. In case of contradictions between the order confirmation, the product description and a separate confirmation, the separate confirmation shall prevail. In the event of a contradiction between the order confirmation and the product description, the order confirmation shall prevail. The customer does not receive guarantees in the legal sense from us, unless these are expressly designated as such. A reference to DIN standards serves only to describe the goods and does not constitute a guarantee.
(6) Our warranty (claims arising from breaches of duty in the form of poor performance in the case of material defects) and the liability resulting therefrom shall be excluded insofar as defects and related damage are not demonstrably based on defective material, defective design, defective workmanship, defective manufacturing materials or, insofar as owed, defective 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 which do not correspond to the average standard influences provided for in our product description or a deviating agreed product specification or the respective product-specific data sheet on our part or on the part of the manufacturer. The foregoing shall not apply in the event of fraudulent, grossly negligent or intentional acts on our part, or injury to life, limb or health, the assumption of a guarantee, a procurement risk in accordance with § 276 BGB (German Civil Code) or liability in accordance with a statutory mandatory liability. Claims for defects shall not exist in the event of only insignificant deviations from the agreed or customary quality or usability. If the customer or a third party improperly repairs the delivered products, we shall not be liable for the resulting consequences.
(7) The acknowledgement of breaches of duty in the form of material defects shall always require the written form. § Section 305b of the German Civil Code (priority of the individual agreement) shall remain unaffected.
(8) Further claims of the customer due to or in connection with defects or consequential damage caused by defects, irrespective of the reason, shall only exist in accordance with the provisions in § 7 of our GTC.
§ 7 Other claims for damages
(1) Subject to the following exceptions, we shall not be liable, in particular not for claims of the customer for damages or reimbursement of expenses – irrespective of the legal grounds – in the event of a breach of duties arising from the contractual obligation.
(2) The above exclusion of liability pursuant to para. 1 does not apply:
– for its 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 essential contractual obligations; “essential contractual obligations” are those whose fulfillment characterizes the contract and on which the customer may rely;
– in case of injury to body, life and health also by legal representatives or vicarious agents;
– in the event of default, insofar as a fixed delivery and/or fixed performance date was agreed; – insofar as we guarantee the quality of our goods or the existence of a performance success 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 the Product Liability Act.
(3) In the event that we or our vicarious agents are only guilty of slight negligence and there is no case of the above paragraph. 2, there 4., 5. and 6. indent, we shall only be liable for the contract-typical and foreseeable damage, even in the event of a breach of essential contractual obligations.
(4) Our liability is limited to a maximum liability amount of 10,000.00 euros for each individual case of damage. This shall not apply if we are guilty of malice, intent or gross negligence, for claims due to injury to life, limb or health and in the case of a claim based on a tortious act or a guarantee or the assumption of a procurement risk in accordance with § 276 BGB or in cases of legally mandatory deviating higher liability amounts. Any further liability is excluded.
(5) The exclusions or limitations of liability pursuant to the above paras. 1-4 shall apply to the same extent in favor of our corporate 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 provisions.
§ 8 Retention of title
(1) The items of the delivery (reserved goods) shall remain our property until complete fulfillment of all claims to which we are entitled against the customer from the business relationship. If a current account relationship has been agreed between the customer and us, the retention of title shall also apply to the respective recognized balance. The same applies insofar as a balance is not recognized but a balance is drawn because, for example, the customer becomes insolvent or goes into liquidation.
(2) During the existence of the reservation of title, 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 he receives payment from his customer or makes the reservation that ownership is not transferred to the customer until he has fulfilled his payment obligations.
(3) The claims arising from a resale or any other legal reason (e.g., resale of goods) shall be excluded. B. Insurance contract, tort General Terms and Conditions of Delivery and Payment of Schmitter Hydraulik GmbH for Business Customers The customer hereby assigns to us, by way of security, all claims arising from any other action or act in respect of the goods subject to retention of title in their entirety. We hereby accept the assignment. If we are only entitled to co-ownership, only that part of the claim shall be assigned to us which corresponds to the value of the item belonging to us or to our co-ownership share at the time the claim arises.
(4) The customer is entitled to collect this claim as long as he 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 obligated to provide us with all necessary information so that we are able to collect the claim against the buyer ourselves. We shall be entitled to revoke the resale and collection authorization if the customer is in considerable payment difficulties or has filed for insolvency or liquidation proceedings. In this case, we may assert the assigned claims and entitlements directly.
(5) In the ordinary course of business, it is permitted to combine the goods subject to retention of title 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 directly mixed or blended with other movable items or converted into a new movable item by processing or transformation. As far as we are not liable according to § 947 of the German Civil Code (BGB), we shall acquire co-ownership in these cases with the creation of the new item. 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 the combination, mixing, processing or transformation at the time of its creation. The customer undertakes to transfer co-ownership to us in cases where an item not delivered by us is to be regarded as the main item.
(6) The customer is obligated to treat the reserved goods with care; in particular, he is obligated to insure them adequately at replacement value against fire, water damage and theft at his own expense.
(7) In the event of seizure or other access by third parties to the items owned by us or to the claims and receivables assigned to us, the customer shall notify us immediately in writing. The same applies if damage occurs to these items.
(8) We undertake to release the securities to which we are entitled at the customer’s request to the extent that the value of all security rights to which we are entitled exceeds the amount of all claims to be secured by more than 20% on a sustained basis. The selection of the collateral to be released is the responsibility of Schmitter Hydraulik GmbH.
§ 9 Storage/processing of customer data
(1) We are entitled to record, store, process and pass on data entrusted to us by the customer within the framework of the contractual relationship using data processing equipment in compliance with the data protection regulations.
(2) We regularly check the creditworthiness of existing customers when concluding contracts and in certain cases where there is a legitimate interest. For this purpose, we work with Creditreform Würzburg Bauer & Polyak KG (Creditreform for short), Martin-Luther-Str. 2, 97027 Würzburg, from which we receive the data required for this purpose. For this purpose, we transmit the name and contact details of the customer to Creditreform. The information according to Article 14 of the EU General Data Protection Regulation on the data processing carried out at Creditreform are published and available on the Internet at www.boniversum.de/eu-dsgvo/.
(3) The legally required mandatory information on data protection of our company and the rights of the customer 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 contractual agreements with the Customer to the contrary, 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 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 – e.g. due to their nature or intended use or final destination – be subject to authorization. The customer himself is obliged to check this and to strictly observe the export regulations and embargos relevant for these goods, in particular those 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 he exports the products supplied by us from the country of first delivery or has them exported by third parties.
(3) The customer shall check, ensure and prove to us upon request that
– the products provided are not intended for use in armaments, nuclear technology or weapons technology;
– no companies and persons named on the US Denied Persons List (DPL) are supplied with US originating goods, US software and US technology;
– no companies and persons named on the US Warning List, US Entity List or US Specially Designated Nationals List are supplied with US originating products without the relevant authorization;
– no companies or persons are supplied who are named in the list of Specially Designated Terrorists, Foreign Terrorist Organizations, Specially Designated Global Terrorists or the terrorist list of the EU, or other relevant negative lists for export control;
– no military recipients are supplied with the products we deliver;
– no recipients are supplied herewith who are in breach of other export control regulations, in particular those of the EU or the ASEAN states;
– all early warning notices issued by the competent German or national authorities of the respective country of first delivery of the consignment are observed.
General Terms and Conditions of Delivery and Payment of Schmitter Hydraulik GmbH for Business Customers
(4) In the event of agreed delivery outside the Federal Republic of Germany, the customer shall ensure at its own expense that all national import regulations of the country of first delivery are fulfilled with regard to the goods to be delivered by us.
(5) The customer shall indemnify us against all damages and expenses resulting from the culpable breach of the above obligations pursuant to para. 1-4 result.
§ 11 Jurisdiction, Miscellaneous
(1) Insofar as the contracting parties are merchants within the meaning of the German Commercial Code, legal entities under public law or special funds under public law, the exclusive – including 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 sue the customer at his general place of jurisdiction. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) Our place of business shall be the place of performance, unless otherwise stated in the order confirmation.
(3) All legal relationships between the contracting parties arising from and in connection with this contract shall be governed exclusively by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG). If this law refers to foreign legal systems, such references are invalid.
(4) The prerequisites and effects of the retention of title pursuant to § 8 shall be governed by the law of the respective location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective thereafter.
(5) For the purposes of these GTC, written form shall be deemed to be satisfied by transmission by fax, by e-mail or by an exchange of letters.
§ 12 Severability clause
(1) Should any provision of this contract be or become invalid/void or unenforceable in whole or in part for reasons of the law of general terms and conditions pursuant to §§ 305-310 BGB, the statutory provisions shall apply.
(2) Should any present or future provision of the contract be or become invalid/void or unenforceable in whole or in part for reasons other than the provisions regarding the law of general terms and conditions pursuant to §§ 305-310 BGB, the validity of the remaining provisions of this contract shall not be affected thereby and the provisions pursuant to the following para. 3 and 4. The same shall apply if a gap requiring supplementation arises after conclusion of the contract.
(3) Contrary to a possible principle according to which a severability preservation clause is in principle only intended to reverse the burden of proof, the validity of the remaining contractual provisions is to be maintained under all circumstances and thus Section 139 of the German Civil Code is to be waived in its entirety.
