SMETS TECHNOLOGY GMBH GENERAL TERMS AND CONDITIONS for the rendering of services
Article 1 Scope, Application and Assignment
1.1 These General Terms and Conditions (GTC) apply, exclusively, to all offers and services delivered or to be delivered by SMETS Technology GmbH (“Smets Technology”, “Company“, “we or us”) to companies, corporate bodies or special public funds, even if no express reference is made to them, provided they have been received by the client when an order is confirmed by the Company. Clients placing orders recognise the validity of these General Terms and Conditions.
Any terms or conditions that are inconsistent with or deviate from these General Terms and Conditions, whether specifically agreed or contained in a client’s general business terms and conditions, shall not be deemed part of the contract unless they have been expressly agreed with the client in writing.
1.2 The Company’s offers are without obligation. Only orders confirmed to the client by the Company in writing (by letter, fax or email) are contractually binding. The Company’s confirmation is decisive with regard to the content and scope of an order.
Article 2 Payment
2.1 The Company’s prices are stated in euro. Exchange rate risks in connection with payments made in other currencies shall be borne by the client.
2.2 Prices are net prices, plus VAT at the applicable rate, plus any transfer and payment charges, and bank or cheque fees, as well as any customs duties or charges applicable to deliveries abroad.
2.3 Unless otherwise expressly agreed with the client pursuant to Article 1.2 of these GTC, prices shall be in accordance with the Company’s Price List from time to time. The Company shall be entitled to adjust sales prices for orders scheduled for delivery four months or more after an order is confirmed if, in the meantime, its suppliers raise their prices or there are other increases in costs.
2.4 In addition to the right to adjust our prices pursuant to Section 2.3, we are entitled to adjust the prices accordingly for contracts with a validity of more than three years, if our suppliers raise their prices, or costs otherwise increase after the contract is signed. Conversely, the client shall be entitled to demand a commensurate reduction in prices if it can be shown that, during the relevant period, the Company’s suppliers lowered their prices or costs otherwise decreased.
2.5 The customer shall send us an order confirmation for each order as a declaration of acceptance of our offer. The scope of services described in the offer can only be reduced with the prior written consent of Smets Technology after receipt of the order confirmation. If – without the mutually agreed reduction of the scope of services – a smaller area than agreed is to be demarked or cleaned, Smets Technology shall be entitled to the full payment in accordance with this §2 for the areas not cleaned or demarked, which were part of the scope of services stated in the offer.
Article 3 Technical Documentation
3.1 Plans, drafts and other technical documentation, especially concerning the equipment used by the Company, as well as any samples, catalogues, brochures, diagrams and the like remain the Company‘s property, and are protected by the relevant legal provisions on copyright and copying, and competition, etc. Upon receipt of such documentation at the latest, the client shall be deemed to have acknowledged the Company’s copyrights and property rights, and his confidentiality obligation. The client undertakes not to divulge such documentation to third parties, or to use it for any purpose other than that for which it was given to him, without the Company’s express written consent.
If no order is placed, the complete documentation shall be returned to the Company; if an order is placed, the documentation must only be returned at the Company’s request.
3.2 Descriptions, specifications, measurements, plans, sketches and drawings, weights and other performance data contained in brochures or other materials only give an approximate rendering of the Company’s services. Such data does not constitute a specification warranty within the meaning of the law (§ 633(2) of the German Civil Code); moreover, technical changes in equipment or processes are reserved. The foregoing applies in all cases except where specifications or characteristics are expressly guaranteed or declared binding. Insignificant variances between described and actual specifications do not constitute a defect.
Article 4 Delivery and acceptance
4.1 The Company shall fulfil its orders in accordance with industrial practice.
4.2 The customer may request Smets Technology to perform 6 weeks after exceeding a performance deadline. With the receipt of the request Smets Technology is in default. If the customer is entitled to compensation for damage caused by the delay, the damage claim is limited to a maximum of 5% of the agreed payment in case of slight negligence on the part of Smets Technology. If the customer wants to withdraw from the contract and/or claim damages instead of performance, he has to set Smets Technology a reasonable deadline for the performance after expiration of the relevant period. Claims for damages instead of performance are excluded in case of slight negligence.
If the customer demands any changes in the execution or to the scope of performance during the performance of the service or if he does not meet his contractual obligations on time when they are due, the term of the period for the performance of the service (if agreed) is interrupted; Smets Technology is not responsible for any delays in the performance of the service resulting from this.
If delays in performance are due to circumstances for which we are not responsible, we are entitled to postpone the performance of the service for the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the part of our service not yet performed. Delays caused by force majeure, in particular strikes, lockouts, official orders, extreme weather conditions, operational disruptions, traffic disruptions or similar circumstances, are not our responsibility under any circumstances. § Section 323 of the German Civil Code (BGB) shall apply with the proviso that the period must be at least thirty (30) days. The customer shall only be entitled to withdraw from the contract or to claim damages instead of performance if he has threatened to do so when setting the grace period. The right of withdrawal and the claim for damages instead of performance shall expire if the customer has not asserted these rights within ten (10) days after expiry of the grace period. § 8.1 of these GTC shall remain unaffected.
We shall also be entitled to reimbursement of our expenses if a service cannot be rendered as agreed because, despite our due care, it becomes apparent after we have commenced our work that the success of the service cannot be achieved for factual or technical reasons for which we are not responsible.
The total price and delivery dates in this contract do not take into account any impact of a pandemic (such as COVID-19) or governmental actions thereon. If such impacts result in additional costs or delays in Smets Technology‘s performance of the Contract, Smets Technology will promptly provide notice on the merits of such impacts and take all reasonable steps to minimize such impacts. As soon as information is available, Smets Technology will provide a detailed assessment of any additional costs and the impact on delivery time. The parties shall agree in good faith on reasonable compensation and extension of delivery time. In addition, Smets Technology shall be entitled to additional costs and/or delivery time extensions a) caused by customer’s delay and/or b) resulting from a change in law, including any instructions/restrictions by governmental action, from Smets Technology‘s quotation date and affecting the performance of the contract.
4.3 The client shall ensure that the work area and all necessary carriageways are secured as prescribed.
4.4 Hours will be charged from the time the contracted vehicles and equipment leave the Company’s facilities on their direct way to execute the assignment until the vehicles and equipment are back at the facilities, cleaned and ready-for-use.
4.5.1 The client shall confirm acceptance of the delivered services within 24 hours of the Company’s request for such acceptance even if performance is completed before the scheduled date; the parties may agree to another time limit. If the client fails to confirm acceptance within the aforesaid time limit, or if the serviced areas are put back into operation, the services will be deemed accepted. If the Company does not request acceptance, the services shall be deemed accepted 24 hours after they are delivered.
4.5.2 Acceptance can only be refused on ground of significant defects and until such time as those defects are remedied.
4.5.3 In the case of recurrent services, delivered services shall be deemed accepted unless the client promptly – i.e. at the latest when the serviced areas are placed in operation – objects in writing (by letter or fax) indicating the time, place, nature and scope of the defects.
Article 5 Payment terms, Delivery, Delays and Passing of the Risk
5.1 The Company uses its best efforts to fulfil assignments as quickly as possible; the client will be promptly informed about any delays or hindrances. In case of doubt, service dates and durations are indicated without obligation unless a specific service schedule has been confirmed to the client in writing.
5.2 Unless it is unreasonable for the client, partial deliveries and partial invoices shall be permitted.
5.3 For services abroad, the client alone is responsible for ensuring compliance with the import rules of the country of destination. It is for the client to obtain all requisite licences and authorisations.
Article 6 Payment terms, assignment of receivables
6.1 Payment is due upon completion of the assignment and presentation of the invoice. The invoice shall indicate the services delivered.
The invoice amount is due and payable within two weeks of the invoice date.
Money orders, cheques and drafts will only be accepted by special agreement on a case-by-case basis, and then only in satisfaction of a debt.
Recurrent services shall be invoiced at the end of each phase or part of the assignment.
6.2 The client shall be in default upon receipt of a reminder sent after the due date. The sum in arrears shall bear interest at usual bank rates; such interest shall not be less than twelve (12) percentage points over the base interest rate. The client shall pay Euro 15 for the second and each additional reminder after the start of default, without prejudice to the legal provisions on commencement of default and payment of default interest.
6.3 If the client is in default of more than one payment obligation, all receivables shall become immediately due and payable.
6.4 A client may only offset against the Company’s claims counterclaims which the Company has recognised or which have been declared legally enforceable. Clients may only claim a right of retention or the right to refuse performance under §§ 273 and 320 of the German Civil Code with respect to claims which have been recognised, are ready for a decision or have been declared legally enforceable.
6.5 If the client’s financial situation deteriorates significantly after the contract is signed, for example as a result of bill protests or debt enforcement proceedings, the Company shall be entitled, insofar as the services have not yet been delivered and without prejudice to any other rights, to set a reasonable time limit for the client to pay the consideration and, if he fails to do so and does not provide adequate security within that time limit, to withdraw from the relevant contracts. If, however, the services have already been delivered, all claims which are not yet due, including any claims backed by drafts and checks, shall become immediately due and payable as a result of the default.
6.6 The Company may assign its claims.
6.7 The client may not assign claims against the Company without the Company’s written consent. Such consent may only be withheld for just cause.
Article 7 Warranties
7.1 The warranty period for the Company’s services is 48 hours.
7.2 The Company’s warranties are excluded in case of defective performance due to the condition of the areas commissioned for treatment, provided such condition could not have been recognised by the Company using the normal degree of diligence and the Company was not responsible for it.
Article 8 Liability
8.1 Unless otherwise expressly provided in these GTC, the Company’s liability for damages and expenses, on whatever grounds, is excluded in case of slight and gross (except for blatant gross) negligence.
8.2 The limitation and restriction of liability under paragraph 8.1of this Article do not apply
a) to injuries causing death or bodily harm or affecting a person’s health;
b) to the Company’s liability under product liability laws;
c) in the event of a breach of essential contractual obligations. In this case the Company’s liability is limited to the foreseeable damages typical for the contractually agreed services. For the purpose of this Article, essential contractual obligations means the main obligations under the reciprocal contractual relationship, the performance of which the client is entitled to rely upon in terms of content, nature and objectives when it signs the contract.
8.3 The liability limits in Article 8 also apply to the Company’s consulting services. Any technical advice provided orally, in writing or by testing is based on current technological standards, the Company’s best knowledge and the indications provided by the suppliers. Notwithstanding, the client is still required to verify the proposed method of use and application. Accordingly, the application, utilisation and other uses of the products and services are exclusively within the client’s responsibility.
Article 9 Place of Performance / Jurisdiction / Governing Law
The place of performance and jurisdiction is at the Company’s registered office or, at the company’s option in the case of proceedings against the client, at the client’s registered office. The legal relationship between the Company and the client is exclusively governed by the laws of the Federal Republic of Germany unless the mandatory provisions of another legal system take precedence; the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) is precluded from application.
Article 10 Disclaimer
These General Terms and Conditions have been translated into English from the German-language original for the convenience of English speakers. In case of a discrepancy between the two versions, the original German-language version shall prevail.