§ 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.