Gerneral Terms & Conditions
General Terms and Conditions of Sale and Delivery
of the Company L.R. Schmitt Nachfolger Sondermaschinenbauges. m.b.H.
1) The sales, delivery and repair conditions below apply to all transactions, unless they are expressly changed by contract, in writing or excluded. Herewith all previous, possibly different conditions lose their validity.
2) Our conditions apply exclusively. We only recognize the buyer’s purchasing conditions that contradict these conditions if we expressly agree to their validity in writing. Our terms and conditions below also apply if we carry out the delivery to the customer without reservation, knowing that the terms and conditions of the customer conflict or deviate from our terms.
3) Our sales, delivery and repair conditions also apply to all future business with the customer.
4) With the first delivery to the present general terms and conditions, the customer accepts their exclusive validity as a framework agreement for further orders and contracts.
2. Offer and Order
1) Offers on our part are subject to change unless their binding nature has been expressly agreed.
2) If an order can be seen as an offer according to § 145 of the German Civil Code (BGB), we can accept it within 2 weeks.
3) As part of offers submitted by us, we reserve ownership and copyrights to all cost estimates, drawings and other documents; they may not be made accessible to any third party without our express written consent. Infringements oblige to full compensation. In addition, we are entitled to withdraw from the contract in the event of infringements. Drawings and other documents belonging to offers are to be returned or paid for immediately upon request or if the order is not placed with us, the amount of the remuneration being determined by us at economic and reasonable discretion. The documents belonging to an offer, such as illustrations, drawings and weights, are only approximate. They are only binding if we have expressly declared this in writing. We reserve the right to make design changes that become necessary for technical or economic reasons until delivery.
4) Orders to us will only become legally binding for us, if we have confirmed them in writing or e-mail. This also applies to orders placed with us that have been accepted by our sales representatives. The scope of our contractual performance is measured solely on the basis of this order confirmation.
Orders confirmed by us, as soon as the preparatory work has started, can only be changed, if the costs incurred are calculated. We carry out any technical or economic deviations in design and execution that we recognize as necessary until delivery, without obtaining the buyer’s consent.
5) Verbal side agreements or agreements with us or our representatives shall not be of any effect.
3. Confidentiality and property rights
Should we have provided the purchaser with documents, these shall remain our property. They are protected by copyright and may not be reproduced, modified or passed on to third parties without our written permission. Furthermore, the Purchaser shall be obliged to keep secret and not make available to third parties all information provided to it and inventions and know-how made available to it, whether in writing, verbally or in object form. We shall only make documents marked as confidential by the customer accessible to third parties with the customer’s consent.
We shall be entitled to all rights to inventions and other development results made solely by our employees within the framework of the contractual or pre-contractual business relationship with the Purchaser.
4. Scope of Delivery
Our order confirmation is decisive for the scope of delivery. Conclusions with our representatives are binding for the buyer, but are only binding for us after written confirmation.
5. Prices and terms of payment
1) All prices are valid FCA Aschaffenburg including loading, but excluding packaging, transport costs, assembly, customs and other ancillary costs, value added tax (the value added tax valid on the day of invoicing will be charged), assembly, insurance and any special taxes.
For deliveries that take more than 3 months, special arrangements remain reserved. We reserve the right to charge the list prices valid on the day of delivery. Packaging will be charged at cost and will not be taken back. All pricing is subject to the “International Rules for the Formation of Commercial Contracts – Incoterms”, INCOTERMS 2020. We reserve the right to change our prices accordingly if cost reductions or cost increases occur after the conclusion of the contract, in particular due to collective wage agreements or changes in material prices. We will provide evidence of these costs to the customer upon request.
2) Payment must always be made as stated in our order confirmation. Otherwise, the net purchase price (without deduction) is due for payment within 30 days of the invoice date. Payment by bill of exchange requires a separate agreement; in this case, all taxes, costs and expenses shall be borne by the purchaser.
3) The deduction of a cash discount is only permissible with a special written agreement.
4) If the customer defaults on payment, we shall be entitled to demand interest on arrears at a rate of 8 percentage points above the base interest rate in accordance with Section 247 of the German Civil Code (BGB). The prime rate is available at www.bundesbank.de . The assertion of a higher damage caused by default remains reserved.
5) If the purchaser is in default with a due payment or if his financial situation deteriorates significantly, for example in such a way that he requests an out-of-court settlement, we may demand cash payment on delivery of the goods for outstanding deliveries from current contracts, with any agreed payment terms no longer being applicable.
6) The purchaser may only offset such claims that are undisputedly recognized by us or have been legally established. Otherwise, he shall only be entitled to retention to the extent that his counterclaim is based on the same contractual relationship. The Purchaser shall also have no right of retention on account of disputed claims.
7) If it is agreed that a contract will be cancelled, the stipulated price shall be due and payable immediately, less the direct costs for the partial work still to be performed by us until the ordered parts are fully completed.
6. Deadlines for supplies and services
1) Our delivery times, which are expressly marked as non-binding, are given to the best of our judgement, subject to correct and timely delivery by the manufacturer and after clarification of all technical questions.
2) The delivery period shall commence with the dispatch of the order confirmation, but not prior to the provision of the documents to be procured by the Purchaser, and not prior to the receipt of an agreed down payment.
3) If non-compliance with the deadline for deliveries or services is demonstrably due to mobilization, war, riot, strike, lockout, force majeure, interruption of operations through no fault of our own, also at our suppliers, or also due to the occurrence of unforeseen obstacles beyond our control, the deadline shall be extended appropriately, without prejudice to our rights under § 9, item 3. We shall not be responsible for the aforementioned circumstances even if they arise during an already existing delay. In important cases, we will inform the customer of the beginning and end of such obstacles as soon as possible.
4) The delivery period shall be deemed to have been met if, by the time it expires, the delivery item has left the factory upon collection or, in the case of dispatch/delivery, readiness for dispatch/delivery has been notified.
5) We shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives and vicarious agents shall be attributed to us. Unless the delay in delivery is due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage. We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; In this case, however, the liability for damages is limited to the foreseeable, typically occurring damage. Claims for damages by the purchaser due to non-fulfillment or delayed fulfillment are excluded in any case, unless this is based on intent or gross negligence.
6) If shipment/delivery is delayed at the request of the purchaser, he shall be charged for the costs incurred by storage, starting one month after notification of readiness for shipment/delivery, in the case of storage in our works at least 1/2 per cent of the invoice amount for each month.
However, we shall be entitled, after setting and fruitless expiry of a reasonable deadline, to otherwise dispose of the delivery item and to supply the customer with a reasonable, extended deadline.
7) Compliance with the delivery period shall be conditional upon the fulfillment of the Purchaser’s contractual obligations.
7. Transfer of risk
1) The risk passes to the customer as soon as the ready-to-use shipment has been delivered or picked up. If the delivery properly arranged by us is delayed for reasons that are in the area of the orderer, the risk passes to the orderer from the time the delay occurs. In the event of delivery, we will take out transport insurance for the goods to be delivered if necessary; the costs fo this will be charged to the customer.
2) The goods delivered by us are to be examined for transport damage immediately after receipt. In the event of damage, a forwarding agent, railway or post office statement of fact must be requested. Complaints in this regard can only be considered 5 days after receipt of the goods by the customer.
3) If the customer is in default of acceptance in the case of a service, for example, because our technician is unable to gain access, the customer is obliged to reimburse the costs incurred, in particular the travel time of our technician and the costs of the journey according to our usual rates.
8. Retention of title
1) The delivered items remain our unrestricted property until full payment of our entire claim, including future claims arising from the business relationship with the customer, subject to the extended and global retention of title.
2) The customer is obliged to handle the purchased item with care; in particular, he is obliged to insure them adequately at his own expense against fire, water and theft damage at replacement value. If maintenance work is required, the customer must carry this out in due time at its own expense.
3) The items subject to retention of title may only be resold by the Purchaser within the scope of its normal business operations. Otherwise, he may not give the goods away, lend them, pledge them or assign them as security.
In the event of an effective resale prior to payment of the purchase price, the Buyer hereby assigns to us all claims in the amount of the gross final amount (including value added tax) of our claim which accrue to him from the resale against his customers or third parties. We will not make use of this right as long as the customer meets his payment obligations and in particular no application for the opening of insolvency proceedings has been filed. If this is the case, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment.
4) In the event of seizure, the customer undertakes to point out that the items are not his property and shall notify us immediately in writing of the seizure.
5) In the event of seizure, the customer undertakes to point out that the items are not his property and shall notify us immediately in writing of the seizure.
9. Set-Up and Installing, co-operation (assistance) of the customer
Unless otherwise agreed, the following terms and conditions apply:
For each type of installation and assembly, the purchaser has to assume the following obligations at his own expense
Timely provision of
Auxiliary crews such as required skilled workers or auxiliaries with the required tools in the required number;
Operating power and water including the necessary connections to the point of use, heating and general lighting
At the installation site for the storage of sufficiently large, dry and lockable rooms and for the installation staff suitable and adequate working and recreation rooms including sanitary facilities. The customer shall take the necessary measures to protect the installation personnel and the property of L. R. Schmitt.
Prior to the start of installation or assembly, the delivery parts required for the start of the work must be on site and all necessary preparatory work must have progressed to such an extent that the assembly or erection can be started immediately after arrival of the assembly personnel and can be carried out without interruption.
If the installation, assembly or commissioning is delayed due to circumstances, which occur in particular on the construction site, without the fault of L. R. Schmitt Nachfolger GmbH, but from the risk area of the Purchaser, the Purchaser shall bear the costs for waiting time and further necessary travel of the assembly personnel to a reasonable extent.
The Customer shall carefully certify the working time to the assembly personnel on a weekly basis.
L. R. Schmitt shall not be liable for work performed by its assembly personnel or vicarious agents insofar as this work is not connected with the delivery or installation or assembly or insofar as it is not initiated by the Purchaser.
If L. R. Schmitt has taken over the installation or assembly against individual invoicing, the following provisions shall apply additionally:
The Purchaser shall compensate L.R. Schmitt at the rates agreed upon at the time the order was placed for working hours and surcharges for overtime, night work, work on Sundays and public holidays as well as for planning and supervision. For the determination of surcharges for holidays, the provisions in force at the registered office of L.R. Schmitt shall be applied.
The following costs will be paid separately:
travel expenses, costs referring transport of tools and personal luggage, allowance for working time, rest days and holidays, accommodation costs.
10. Liability for defects
1) The rights of the Buyer with regard to defects are conditional upon the Buyer properly fulfilling his duties of inspection and complaints. Notice of defects shall be deemed invalid after twelve (12) months from transfer of risk.
2) To the extent the purchased good exhibits a defect, subject to notification of the defect within the deadline, we are entitled to choose between subsequent performance in the form of removal of the defect or delivery of a new, non-defective good. In case of removal of defects, we are obliged to bear any expenses required for the removal of defects carried out by the service technician of L.R. Schmitt Nachfolger GmbH. Transport costs, travelling costs and expences have to be beared by the customer.
3) If repair fails to remedy the defects, purchaser shall be entitled to either adjust the purchase price or rescind the contract.
4) Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant of the usability, in case of natural wear and tear, in case of faulty assembly including faulty installation, commissioning and use of substitute materials by the purchaser or third parties, as well as in the case of damage occurring after the transfer of risk as a result of negligent handling, excessive use, natural wear and tear, or improper maintenance, unsuitable operating conditions unsuitable conditions of use, in particular in the case of chemical, electrochemical or electrical/electromagnetic influences as well as unsuitable operating due to special external influences which are not provided for in the contract. If the customer or a third party carries out improper repair work or modifications, no claims for defects shall exist for these and the resulting consequences.
5) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, also with regard to our representatives and vicarious agents. Insofar as we are not breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
We shall be liable in accordance with the statutory provisions insofar as we culpably violate an essential contractual obligation; in this case, liability shall be limited to the foreseeable, typically occurring damage.
Insofar as the purchaser is entitled to compensation for damage instead of performance, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
Liability for culpable injury to life, body or health shall remain unaffected. This also applies to
mandatory liability under the Product Liability Law.
Unless otherwise stipulated above, liability is excluded.
6) For machines or essential parts of machines that we procure from third parties, our liability for defects shall be limited to the assignment of the warranty claims to which we are entitled against the third party as supplier. Our warranty liability shall only be subsidiary if it can be proven that the warranty claims against the third party is impossible. Information and provision of the documents shall be made by us at any time in the event of the assertion of such warranty claims.
7) We do not assume any liability for wearing materials such as rubber parts, plugs, sockets, cables and other wearing parts such as PTFE-coated belts, conveyor belts and textile coverings. For warranty claims regarding such wearing parts verification shall be borne by the customer.
11.Liability for defects upon the processing of sent-in parts
Liability for defects of sent-in parts upon the processing of e.g. chipping working, grinding etc., the supplier shall not be liable for defects that arise from the behavior of the material.
If parts sent in become unusable during the processing as a result of material defects or other defects, the processing costs incurred have to be reimbursed.
If work pieces become unusable due to circumstances for which we are responsible, then we shall undertake the processing of identical replacement pieces.
12. Total Liability
1) A more extensive liability for damages than is envisaged in paragraph 7 – without taking into account the legal nature of claim made – is excluded.
This shall apply in particular to claims for damages arising from culpa in contrahendo, on the grounds of other breaches of obligation or of tortious claims for compensation for material damage pursuant to clause § 823 BGB
2) In case of claims for compensation the limitation according to section 1. is valid also for the demand of compensation for useless efforts.
3) Insofar as the damage compensation claims towards us are excluded, this is also applicable regarding the personal damage compensation of our employees, workers, staff members, representatives and vicarious agents
1) In the event of a deterioration of the customer’s financial situation after the conclusion of the contract, such as an application for the opening of bankruptcy proceedings, a request for implementation of an out of-court settlement, fruitless enforcement measures, bank draft or check protests, or similar circumstances in regard to the customer, we are entitled to withdrawal.
Furthermore we shall be entitled to additional damage claims resp. compensation. This compensation encompasses lost profits, expenses we have incurred in the context of the withdrawal from each contract, and any reduction in value of the delivered objects that may have arisen. Moreover, in the event of withdrawal we can demand the immediate return of the delivered objects.
2) In the event the customer is behind its payment within the meaning of § 3 of these terms and conditions, after a reasonable subsequent deadline we are also entitled to withdrawal. It is essential with the conditions laid down in § 9 figure 1) clause 3.
3) In the event of unforeseen obstacles within the meaning of § 4 figure 3), insofar as conformance of the contract is not economically viable we have the right of withdrawal.
4) In case of impossibility of delivery for which we are responsible, claims for damages of the customer will be limited to 5 % of the value of the agreed delivery. However, these claims for damages shall arise only insofar as it can be proved that the impossibility demonstrably causes damage.
14. Export Control
The export of certain goods, information, software, documentation and other data may be subject to licensing requirements by virtue of their nature, their intended use or their country of receipt. The user shall keep the export regulations of information, software and documentation, especially the regulations of the EU and the member states of the EU, and the USA.
15. Court of jurisdiction and place of fulfilment
Insofar as the customer is a merchant, Aschaffenburg is the place of jurisdiction. However, we shall be entitled to sue the customer at his local court as well. Unless otherwise stated in the order confirmation, our place of business is the place of fulfilment for both parties.
16. Severability Clause
Should individual terms of these General Terms & Conditions of sale, delivery and repair be ineffective or lose their effectiveness, it is understood that this shall have no bearing upon the contents and validity of the remaining parts of the contract. In this case, the void provision shall be replaced by the legal regulation.
17. Data Protection / Privacy
We store and process the personal data in accordance with the General Data Protection Regulations (GDPR, EU 2016/679) of the European Union as well as other applicable statutory data protection provisions, in particular such as the Federal Data Protection Act of Germany (BDSG Bundesdatenschutzgesetz).
All data will, of course, be treated strictly confidentially. More details can be found in our separate Data Protection Regulations, which provide an overview of the processing of personal data.