General Terms and Conditions of Schmettau & Fuchs GmbH
§ 1. General
(1) All offers and deliveries are made on the basis of the following delivery conditions. These form the basis of all offers and agreements and are deemed to be accepted for the duration of the entire business relationship by placing an order or accepting the delivery. Deviating conditions that are not expressly recognized in writing are non-binding for the seller, even if they have not been expressly contradicted. Schmettau & Fuchs delivers exclusively to entrepreneurs. According to § 14 BGB, an “entrepreneur” is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction,
§ 2 Prices - Terms of Payment
(1) Unless otherwise stated in the order confirmation, the prices apply ex works excluding transport packaging; this will be invoiced separately.
(2) Statutory value added tax is not included in the prices; it is shown separately on the invoice at the statutory rate on the day of invoicing.
(3) The purchase price and prices for ancillary services are due for payment when the object of purchase is handed over and the invoice is handed over or sent.
(4) The deduction of cash discount requires a special written agreement.
(5) In the event of default in payment, default interest of 1% per month must be paid. In the event of non-payment of direct debits, a processing fee of €10 will be charged. This does not rule out the assertion of further damage caused by delay.
(6) The buyer can only offset against the seller's claims if the buyer's counterclaim is undisputed or there is a legally binding title; a right of retention
§ 3 Delivery
(1) Delivery dates and delivery periods, which can be agreed as binding or non-binding, must be stated in writing. Delivery periods begin with the conclusion of the contract.
(2) If the seller is prevented from delivering the purchased item on the agreed date or within the agreed period (delay in delivery) due to a circumstance for which he or a vicarious agent is responsible, he is liable in accordance with the statutory provisions. If the seller or his vicarious agents are not responsible for the delay in delivery, the seller is only liable for the foreseeable, typically occurring damage. If the delay in delivery is only due to a breach of a non-essential contractual obligation, the buyer can claim flat-rate damages for delay amounting to a maximum of 15% of the value of the delivery.
(3) Force majeure and events that temporarily prevent the seller from delivering the purchased item on the agreed date or within the agreed period through no fault of his own entitle the seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period. If such disruptions lead to a delay in performance of more than four months, the buyer can withdraw from the contract. Other rights of withdrawal remain unaffected.
(4) The buyer is obliged to accept the purchased item. If the buyer is in default of acceptance, the seller is entitled to demand compensation for the damage incurred as a result.
(5) The manufacturer reserves the right to make design or shape changes, deviations in color and changes to the scope of delivery during the delivery period, provided that the changes or deviations are reasonable for the buyer, taking into account the interests of the seller. If the seller or the manufacturer uses signs or numbers to designate the order or the ordered object of purchase, no rights can be derived from this alone with regard to the specification of the object of purchase or the scope of delivery.
(6) The return of sold goods is generally excluded. If, exceptionally, goods are taken back, the net price valid on the day of the return will be credited. If the net price on the day of delivery is below the net price on the day of return delivery, the net price valid on the day of delivery will be credited. In either case, a 15% restocking fee will be charged. A credit note will only be issued for specially ordered or manufactured parts after they have been sold. The above does not apply if the retention of title is exercised.
§ 4 Passing of Risk
(1) The risk of accidental loss and accidental deterioration of the item is transferred to the buyer when it is handed over.
(2) In the event that the buyer is not a consumer, the risk shall pass to the buyer upon shipment of the item when the item is handed over to the person carrying out the transport or when the goods have left the seller's warehouse for the purpose of shipment.
§ 5 Warranty
(1) In the case of sales contracts in which a consumer (§ 13 BGB) is not involved, the warranty period is 1 year.
(2) The warranty claims of the buyer are primarily limited to a claim for subsequent performance, i.e. a claim for repair or replacement. If the buyer is not a consumer, the seller has the right to choose between repair or replacement. If the repair or replacement delivery fails, the buyer can demand a price reduction or withdraw from the contract. The rectification has failed if and to the extent that a deadline set for the seller to rectify the defect has expired without result. The requirements for exercising the right of withdrawal are determined according to § 323 BGB.
(3) The seller is liable according to the statutory provisions if the buyer asserts claims for damages based on fraudulent intent, intent or gross negligence, including fraudulent intent, intent or gross negligence on the part of its representatives or vicarious agents. Insofar as the seller is not accused of intentional breach of contract, liability is limited to the foreseeable, typically occurring damage. If the claim for damages is based on a culpable failure to remedy the defect, it is limited to the corresponding rates of the DAT/Schwacke list with regard to installation and removal costs. Moreover, the liability for damages is excluded; in this respect, the seller is not liable in particular for damage that did not occur on the delivery item.
(4) In the case of rectification, the seller is obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, labor and material costs. This only applies to non-consumers if the costs do not increase due to the fact that the purchased item was taken to a place other than the place of performance.
(5) The buyer must assert claims for the removal of defects from the seller.
(6) In the event of a defect based on incorrect assembly instructions, the seller's warranty obligation only applies if the assembly or installation of the item sold was otherwise carried out competently
§ 6 Entrepreneur's recourse when selling to commercial resellers
(1) If the buyer resells the sold item to a consumer as part of his commercial operation and has to take this item back as a result of its defectiveness or reduce the purchase price, the buyer can assert his warranty rights from the seller without setting a deadline.
(2) The buyer can also demand reimbursement of the expenses he had to bear in relation to the consumer if the defect asserted by the consumer already existed when the risk passed to the buyer. Expenses are in particular transport, travel, labor and material costs.
(3) The buyer has no claim for damages within the scope of this entrepreneurial recourse
§ 7 Retention of title
(1) The purchased item remains the property of the seller until the claims to which the seller is entitled under the purchase contract have been settled. If the buyer is a merchant within the meaning of the German Commercial Code, we reserve title to all delivery items until all payments from the business relationship have been received.
(2) The buyer is entitled to resell the delivery items in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount of the purchase price he owes (including sales tax) that accrue to him from the resale to his customers or third parties, regardless of whether the delivery items have been resold without or after processing. The buyer remains authorized to collect these claims even after the assignment. The authorization of the seller to collect the claims himself remains unaffected. The seller undertakes not to collect the claims himself as long as the buyer meets his contractual payment obligations and no application for the opening of insolvency proceedings has been filed. If one of the latter circumstances occurs, the buyer must, at the request of the seller, provide the seller with all information necessary to collect the assigned claim and hand over the associated documents and inform the debtors (third parties) concerned of the assignment.
(3) In the event that the value of the seller's securities exceeds the claims to be secured by more than 20%, the seller is obliged to release the securities to which he is entitled at the request of the buyer. The choice of securities to be released is incumbent upon the seller
§ 8 Place of Jurisdiction - Place of Performance
(1) Place of performance is the place of business of Schmettau & Fuchs.
(2) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of jurisdiction is the place of business of Schmettau & Fuchs.