SMETS TECHNOLOGY GMBH GENERAL TERMS AND CONDITIONS for the Sale, Delivery and Payment of Spareparts
Article 1 Scope and Validity
1.1 These General Terms and Conditions of Sale, Delivery and Payment apply, exclusively, to all present and future sales and deliveries made by SMETS Technology GmbH (the “Company“, “we or us” or the “Seller”) 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 commercial agents, representatives and field staff are not authorised to enter into any agreements, give any consents or make any other legally binding statements which deviate from these General Terms and Conditions, except when explicitly approved by us.
1.3 The Company’s offers are without obligation. Clients are bound by their orders. 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 the order.
1.4 Clients may not assign or transfer their rights and obligations under contracts concluded with the Company to third parties without the Company’s written consent.
Article 2 Minimum Orders, Prices
2.1 Orders shall be for a minimum net value of € 50.00. Orders below this limit will be subject to a surcharge of € 10 per delivery.
2.2 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.
2.3 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.
2.4 Unless otherwise agreed in writing, prices are stated net ex-works, i.e. without packaging, loading, shipping and insurance.
2.5 If its suppliers increase their prices or if costs increase otherwise, the Company shall be entitled to adjust the sales prices for orders that were scheduled for delivery four months or more after the confirmation of order.
Article 3 Technical Documentation
3.1 Plans, drafts and other technical documentation 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. At the latest upon receipt of such documentation, 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 products. Such data does not constitute a specification warranty within the meaning of the law (§ 434 of the German Civil Code); moreover, technical changes are reserved. The foregoing applies in all cases except where specifications or characteristics are expressly guaranteed or declared binding. Insignificant variances between the described and actual specifications do not constitute a defect.
Article 4 Delivery, Delays and Passing of the Risk
4.1 The Company shall do its utmost to satisfy orders as quickly as possible; clients will be promptly informed about any delivery delays or hindrances. Delivery dates and delivery periods are without obligation unless a specific delivery date or delivery period is confirmed individually to the client in writing. Delivery periods start running when the client receives the order confirmation.
4.2 Unless it is unreasonable for the client, partial deliveries and partial invoices are permitted.
4.3 The client may request the seller to deliver 6 weeks after exceeding a binding delivery date or a binding delivery period. The Seller shall be in default upon receipt of the request. If the client is entitled to compensation for damages caused by delay, this shall be limited to a maximum of 5% of the agreed purchase price in the event of slight negligence on the part of the Seller. If, in addition, the customer wishes to withdraw from the contract and/or claim damages in lieu of performance, he must set us a reasonable deadline for delivery after expiry of the relevant period. Claims for damages instead of performance are excluded in the case of slight negligence.
If, during the delivery period, the client requests any changes in the design or with regard to the scope of delivery or if he does not meet his contractual obligations punctually when they are due, the term of the delivery period shall be interrupted as a result; the seller shall not be responsible for any delays in delivery resulting therefrom. Changes in design or shape and changes in the scope of delivery on the part of the manufacturer remain changes to the scope of delivery during the delivery period, provided that changes or deviations, taking into account the interests of the interests of the seller are reasonable for the buyer. If the seller or the manufacturer for the designation of the order or the ordered object of purchase, no rights can be derived solely numbers for the designation of the order or the ordered derived from this alone.
If delivery delays on the part of the Company are caused by delivery delays on the part of its suppliers or by any other circumstances beyond its control, the Company shall be entitled to defer its services for the duration of the hindrance or for a reasonable period of time, or it may withdraw fully or partially from the contract in respect of the outstanding part of the assignment. On no account shall the Company be liable for delays caused by events of force majeure including strikes, lock-outs, public ordinances, extreme weather conditions, traffic disruptions, breakdown of operations or similar events. § 323 of the German Civil Code applies, with the proviso that the time limit shall be of at least thirty (30) days. The client is only entitled to withdraw from the contract or to claim compensation in lieu of performance if he threatened to do so when the time limit was extended. The client’s right of withdrawal or entitlement to compensation in lieu of performance shall expire if he does not assert such rights ten days after the final deadline has elapsed. Article 8.1 of these General Terms and Conditions remains reserved.
If the delay or hindrance lasts longer than thirty (30) calendar days, the client shall be entitled to withdraw from the contract after giving the Company a reasonable additional time limit for the outstanding part of the assignment. If, as a result, the performance period is extended or the Company is released from its obligations, the client shall not be entitled to rely on such grounds to claim damages.
The total price and delivery dates in this contract do not take into account any effects of a pandemic (such as COVID-19) or governmental actions thereon. In the event that such effects result in additional costs or delays in Seller’s performance of the Contract, Seller shall promptly give notice of such effects on the merits and take all reasonable steps to minimize such effects. As soon as information is available, Seller shall provide a detailed assessment of all additional costs and the impact on the delivery time. The parties shall agree in good faith on reasonable compensation and extension of delivery time. In addition, Seller shall be entitled to additional costs and/or delivery time extensions a) caused by Buyer’s delay and/or b) resulting from a change in the law, including any instructions/restrictions imposed by governmental measures, as of Seller’s offer date, which affect the performance of the contract.
4.4 Goods shipped to the client are shipped at the client’s cost and risk. The risk passes to the client when the goods are delivered to the forwarding agent, carrier or other shipper. Transport insurance will only be contracted at the client’s express demand and at his expense. If hoods that are ready for delivery cannot be shipped through no fault of the Company, or for reasons attributable to the client, or if the client does not accept delivery of the purchased goods within eight days of receiving the Company’s notice that the goods are ready for delivery at the agreed place, the Company shall charge the client demurrage from the 10th day, at the rate of euro 100 per day plus VAT at the applicable rate. All further rights are reserved.
4.5 For deliveries 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.
4.6 Article 8 also applies in case of delivery delays and non-delivery.
Article 5 Payment Terms, assignment of receivables
5.1 For deliveries in Germany, the purchase price and price for added services (like transportation etc) is due and payable without any deductions immediately upon handover of the vehicle and submittance of the invoice. First deliveries to new clients and deliveries abroad are payable in advance. Money orders, cheques and drafts will only be accepted on a case-by-case basis by special agreement and then only in satisfaction of a debt.
5.2 The client shall be in default upon receipt of a reminder sent after the due date. The sum in arrears shall bear interest at twelve (12) percentage points over the base interest rate. The client shall pay Euro 15 for each reminder after the start of default, without prejudice to the legal provisions on commencement of default and payment of default interest.
5.3 If the client is in default of more than one payment obligation, all receivables shall become immediately due and payable.
5.4 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 not claim a right of retention or the right to refuse performance under §§ 273 and 320 of the German Civil Code unless the Company is responsible for gross contractual infringement.
5.5 If the client’s financial situation deteriorates significantly after the contract is signed, for example as a result of bill protests or debt enforcement, the Company shall be entitled, insofar as the goods 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 goods 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 intervening default. Moreover, by virtue of the Company’s retention of title, the goods may be repossessed at the client’s expense and without notice at any time, even before the purchase price falls due; such repossession shall not qualify as a withdrawal from the contract.
5.6 If the client delays in picking up the vehicle or in making payment, the Company has all the rights conferred by law. If the Company elects to withdraw from the contract and claim damages instead of performance, the damages for loss of profit shall be 15% of the purchase price plus VAT at the applicable rate, unless the Company or the client can demonstrate that the profit lost was higher or lower respectively in any given case. Any further rights to damages and the Company’s rights under Article 6 of these General Terms and Conditions remain reserved.
5.7 The Company may assign its claims.
5.8 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 6 Retention of Title
6.1 Delivered goods remain the Company’s property until the full and final settlement of all existing and future claims against the client deriving from the overall business relationship, including the balance of any current account claims, irrespective of the legal basis for such claims.
6.2 The reserved goods may only be sold and processed in the normal course of business and provided the client is not in arrears with his payment obligations towards the Company. Reserved goods may not be pledged or assigned by way of security.
6.3 The client may process and manipulate the reserved goods in the normal course of business. Processing and manipulation shall be carried out on behalf of the Company as manufacturer, within the meaning of § 950 BGB, but without obligation for the Company. The Company automatically acquires the title to the product resulting from the processing or manipulation. If the reserved goods are processed together with other goods not belonging to the Company, the Company shall acquire co-ownership of the new product proportionately to the ratio of the market value of the reserved goods to the total market value of all the goods being processed together.
If, during the processing, the Company loses its title over the reserved goods to the client, it is hereby agreed that as soon as the client acquires ownership, it shall transfer the ownership to the Company. If the reserved goods are processed together with other goods not belonging to the Company, and the client becomes the owner of the new product, it is hereby agreed that the client shall transfer the co-ownership of the new product to the Company proportionately to the ratio of the market value of the processed reserved goods to the total market value of all the goods which were processed together. The client shall hold the ownership or co-ownership revocably and gratuitously in trust for the Company.
6.4 The client hereby assigns to the Company by way of security any claims against third parties arising from the onward sale of the goods (including the balance of any current account claims) and any other claims (e.g. for unauthorised processing or insurance benefits) in connection with the goods. The Company hereby accepts such assignment. The client shall remit to the Company at its request all necessary documentation and information for the assertion of the assigned claims. The Company revocably authorises the client to collect the assigned claims in its own name for the Company’s account. The Company may revoke this power if the client does not duly fulfil its payment obligations towards the Company.
6.5 The client shall, at its own expense but in the Company’s favour, contract adequate insurance covering the reserved goods against theft, burglary and fire and water damage, and it shall produce evidence of such coverage on demand. The insurance coverage shall be maintained as long as the Company still has claims against the client in the scope of their overall business relationship. The client hereby assigns all insurance claims in connection with the reserved goods to the Company. The Company hereby accepts such assignment.
6.6 The client shall immediately object to any third-party actions (e.g. seizure or attachment) affecting the reserved goods or the claims assigned to the Company, referring to the Company’s rights. He shall promptly notify the Company in writing of any such action, remitting to the Company the necessary documents (e.g. the record of attachment) enabling it to take action.
6.7 If the client fails to pay any amount when due or otherwise infringes his contractual obligations, the Company shall be entitled to repossess the reserved goods at the client’s expense or to demand the assignment of the client’s claims for return against third parties. The assertion of the Company’s rights of retention and its repossession or seizure of the goods do not qualify as a withdrawal from the contract.
6.8 The retention of title also secures any liabilities which may arise from an official receiver’s unilateral choice of performance.
6.9 The Company shall release the securities held pursuant to the above if and insofar as they exceed the value of the claims to be secured by 20% or more, under the proviso that only deliveries which have been fully paid will be released; current account deliveries are excepted.
Article 7 Warranties
7.1 The Company’s warranties presuppose that the client promptly notifies it of any defects in the goods or any wrong or incorrect deliveries. § 377 of the German Commercial Code is applicable, with the proviso that defects must be notified and accurately described to the Company in writing. Apparent defects must be notified within eight (8) days of delivery. Hidden defects must be notified within eight (8) days of discovery but no later than three (3) months after delivery. The client shall, at the Company’s option, return the faulty goods or allow the Company to check the goods and remedy the defect on site.
7.2 The Company’s warranties do not cover normal wear and tear of the goods, nor do the warranties extend to defects caused by the client or by third parties, for example through improper alteration, use or handling of the goods or through lack of repair and maintenance. The client is expressly made aware of the fact that the nozzles delivered by the Company have a limited life span which largely depends on operating pressure and environmental conditions, such as water quality in particular.
7.3 The Company’s warranties are first limited to the right to remedy or replace the defective goods at its option. If this is not effective or if the client can show that such a solution is unreasonable for him on other grounds, the client may, at his choice, ask for a decrease in price (reduction) or withdraw from the contract.
7.4 Claims based on defects become time-barred one (1) year after delivery.
7.5 If a product delivered by the Company reaches a private consumer who files a justified warranty claim, the client may avail himself of his legal rights of recourse (§§ 478 and 479 BGB) subject to Article 7.1 and Article 8 of these General Terms and Conditions.