General Delivery and Sales Conditions of SMK Meister GmbH & Co. KG, Lombacher Straße 53 in 72293 Glatten
Section 1 Scope of Terms
(1) The vendor / supplier – hereinafter referred to as: the Vendor – provides its deliveries, services and offers exclusively according to these terms and conditions. They also apply to all future business relations, even if they are not expressly agreed to again. These terms are deemed accepted upon acceptance of the goods or services, if not earlier. Conflicting confirmations or orders from the Buyer / Agency Ordering the Work and services referring to the Buyer's own General Terms and Conditions or Sales Terms are herewith rejected.
(2) Any arrangements made between the Vendor and the Buyer in order to execute this contract must be in writing. Verbal agreements are only valid if confirmed in writing.
Section 2 Offer and Conclusion of Contract
(1) The offers of the Vendor are always subject to confirmation and non-binding. Declarations of acceptance and orders require written (paper or electronic means) (*written and telex*) confirmation from the Vendor to be legally binding.
(2) Drawings, illustrations, dimensions, weights or other performance specifications are only binding when expressly agreed to in writing.
(3) The Vendor’s sales personnel are not authorized to make verbal side agreements or give verbal assurances that go beyond the content of the written contract.
Section 3 Prices
(1) Unless otherwise agreed, the Vendor is bound to the prices stated in an offer for 30 days from the date of the offer. Otherwise, the binding prices are those stated in the Vendor’s order confirmation plus statutory VAT. Additional deliveries and services will be charged separately.
(2) The prices are, unless otherwise agreed, FOB warehouse (location) including normal packaging.
Section 4 Delivery and Time of Performance
(1) Delivery dates or deadlines that are binding or not binding need to be agreed in writing.
(2) The Vendor is not responsible for delays in delivery and performance due to force majeure and events that considerably complicate the delivery not only temporarily or make such impossible – particularly including strike, lockout, administrative orders etc., even if such occur at the Vendor’s suppliers or their sub-suppliers – even if such deadlines and dates have been bindingly agreed. They entitle the Vendor to postpone the delivery or service for the duration of the obstruction plus a reasonable start-up period or to fully or partially cancel the contract because of the part not yet fulfilled.
(3) The Buyer is entitled, after specifying a reasonable additional period for performance, to withdraw from those portions of the contract not yet fulfilled, if the obstruction lasts longer than three months. The Buyer cannot derive any claims for damages from an extended delivery time or if the Vendor is released from its obligations. The Vendor may rely on those circumstances only if it notifies the Buyer immediately.
(4) Where the Vendor is responsible for the non-compliance with expressly confirmed deadlines and dates or is behind schedule, the buyer is entitled to a compensation for delay in the amount of 0.5 % of the invoice amount for each full week of delay, but not exceeding 5% of the invoice amount of the deliveries and services affected by the delay. Further claims are excluded provided the delay is not based on gross negligence of the Vendor.
(5) At any time, the Vendor is entitled to provide partial deliveries and partial services unless a partial delivery or partial service is of no interest to the Buyer.
(6) Compliance with the Vendor’s delivery and performance obligations requires the timely and proper fulfilment of the Buyer’s obligations.
(7) If the buyer is in default of acceptance, the Vendor is entitled to demand compensation for damages sustained; the risk of accidental deterioration and accidental loss is transferred to the Buyer upon default of acceptance.
Section 5 Transfer of Assumption of Risk
The risk is transferred to the Buyer once the goods have been handed to the person performing the transport or have left the Vendor’s warehouse for shipping. If the shipment is delayed on request of the Buyer, the risk is transferred to the Buyer once the notice of readiness for shipment is issued.
Section 6 Rights of the Buyer due to Defects
(1) The products are delivered free from manufacturing and material defects; the time limit for asserting claims for defects is one year from delivery of the products.
(2) Claim for defects in the products become null and void upon the failure to observe the Vendor’s operating or maintenance instructions, modifying products, or using parts or consumables that do not meet the original specifications, if the Buyer does not disprove a substantiated claim that one of the above circumstances has caused a defect.
(3) The Buyer must immediately notify the Vendor’s customer service department of any defect in writing but no later than one week after receipt of the delivery item. Defects that cannot be detected by a thorough examination within this period shall be notified to the Vendor in writing immediately after discovery.
(4) In case of a Buyer’s notification that the products have a defect, Vendor requests at its discretion and at its own expense that:
That the defective part or unit is sent to the Vendor for repair and subsequent return to the Buyer;
If the Buyer requires defects to be remedied at a location specified by the Buyer, Vendor may accommodate this request, whereby replaced parts are free of charge, while the Buyer must pay for working hours and travel expenses at the Vendor’s standard rates.
(5) Liability for normal wear and tear is excluded.
(6) Only the direct Buyer may assert a claim for defects against the Vendor, which entitlement cannot be assigned.
Section 7 Retention of Title
(1) Until the settlement of all current or future claims (including current account balance claims) the Vendor has against the Buyer for any legal reason, the Vendor is granted the following securities, which it will release on request at its discretion, if their sustained value exceeds the claims by more than 20%.
(2) The goods remain the property of the Vendor. Any processing or transformation performed is always done for the Vendor as manufacturer, however without obliging it in any way. If the Vendor’s (co-) ownership ceases to exist through joining, the Buyer’s (co-) ownership in the joined item is transferred to the Vendor proportionate to its value (invoice value). The Buyer holds the Vendor’s (co-) ownership in safe custody free of charge. Goods the Vendor has a (co-) ownership in will subsequently be referred to as goods subject to retention of title.
(3) Unless the Buyer is in arrears, it is entitled to process the goods subject to retention of title in the normal course of business. Delivering goods in pledge or transfers of title for security purposes are inadmissible. The Buyer shall assign as security to the Vendor in full any receivables from the resale of goods subject to retention of title or receivables based on other legal grounds (insurance, tort) with respect to such goods (including all current account balance claims). The Vendor authorizes the Buyer on a revocable basis to collect any receivables assigned to the Vendor for its account and in its own name. This authorization may be revoked only if the Buyer fails to properly meet its payment obligations.
(4) If a third party attempts to access goods subject to retention of title, especially seizure, Buyer will point out the Vendor’s property and inform the Vendor immediately so that it may assert its rights of ownership. The Buyer is liable for any judicial or extrajudicial costs incurred by the Vendor in such matter, if the third party is not able to refund such costs the Vendor.
(5) The Vendor is entitled to cancel the contract and reclaim the goods subject to retention of title if the Buyer’s behaviour is contrary to the terms of contract – particularly delay in payment.
Section 8 Payment
(1) Unless otherwise agreed, Vendor’s invoices become due without any deduction 30 days after the invoice date. Notwithstanding any contrary provisions of the Buyer, Vendor is entitled to credit Buyer’s payments against older debts and shall inform the Buyer of such kind of settlement. If costs and interest have already been incurred, Vendor is entitled to credit payments, first against costs, secondly against interests, and finally against the principal service.
(2) Payments shall be considered made once the Vendor can dispose of such amounts. In the case of a check, payment is considered made once the check was cashed.
(3) If the Buyer defaults, Vendor is entitled to demand, from the relevant date and as a flat-rate compensation, interests at a rate that is 8 percentage points above the base rate. Interests are to be set lower if the Buyer can demonstrate lower costs on the part of the Vendor and Vendor may demonstrate a greater damage.
(4) If the Vendor becomes aware of circumstances that cast a doubt on the Buyer’s credit-worthiness, Vendor may declare any remaining debt as due, even if it has accepted checks. In this case, Vendor is also entitled to demand advance payments or performance deposits.
(5) Even if Buyer has asserted complaints or counterclaims, Buyer is entitled to netting, retention or reduction only, if such counterclaims have been legally established or are undisputed. However, Buyer may withhold performance because of counterclaims that are based on the same contractual relationship.
Section 9 Design Changes
The Vendor reserves the right to make design changes at any time; however, Vendor is not obliged to make such changes to products already delivered.
Section 10 Patents
(1) The Vendor shall indemnify the Buyer and its customers from any claims based on the violation of copyrights, trademarks or patents, unless the design of a delivery item originates from the Buyer. The Vendor’s obligation to indemnify is limited to the foreseeable damage sum. An additional condition for the indemnification is that the Vendor may take the lead in any litigation and that the alleged infringement is entirely attributable to the construction of the Vendor’s delivery items and not combined with the use of any other products.
(2) The Vendor can optionally rid itself from the obligations assumed in para. 1 by either
a) procuring the required licenses for the allegedly infringed patents
b) providing the Buyer with modified delivery items or parts thereof that eliminate the alleged infringement when exchanged for the infringing delivery items or parts thereof.
Unless expressly agreed otherwise in writing, information provided to the Vendor in connection with orders are not deemed confidential.
Section 12 Liability
(1) Unless intentional or gross negligence can be demonstrated, claims for compensation are excluded regardless of the nature of the breach, including tort.
(2) The Vendor is liable for any negligent breach of contract, but only up to the amount of any foreseeable damage. Claims for loss of profit and saved expenditure from damage compensation claims of third parties and other indirect and consequential damages may not be claimed unless a characteristic of state guaranteed by the Vendor was specifically intended to protect the Buyer against such damage.
(3) The limitation and exclusion of liability in para. 1 and 2 shall not apply to claims based on the Vendor’s fraudulent behaviour, guaranteed characteristics of state, claims under the product liability act and claims resulting from the loss of life and injuries or damage to the body or health.
(4) An excluded or limited liability of the Vendor also applies to its staff, employees, representatives and agents.
Section 13 Applicable Law, Jurisdiction, Partial Nullity
(1) The law of the Federal Republic of Germany shall apply to these Terms and Conditions and the entire legal relationship between Vendor and Buyer. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
(2) Horb / Rottweil shall have exclusive jurisdiction for all disputes directly arising from the contractual relationship if the Buyer is a merchant, legal person under public law or special fund under public law.
(3) The validity of any other provision or agreement shall not be affected if any provision of these Terms and Conditions or a provision of any other agreement is or becomes invalid.