SMETS TECHNOLOGY GMBH GENERAL TERMS AND CONDITIONS for the Sale, Delivery and Payment of Special Vehicles and Devices
Article 1 Scope, Application and Assignment
1.1 These General Terms and Conditions of Sale, Delivery and Payment apply, exclu-sively, to all present and future sales and deliveries made by SMETS Technology GmbH (“Smets Technology”, “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 incon-sistent 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, repre-sentatives and field staff are not authorised to enter into any agreements, give any con-sents or make any other legally binding statements which deviate from these Gen-eral Terms and Conditions, except when explicitly approved by us.
1.3 The Company’s offers are without obliga-tion. Clients are bound by their orders. Only orders confirmed to the client by the Com-pany in writing (by letter, fax or email) are contractually binding. The Company’s con-firmation is decisive with regard to the con-tent and scope of the order.
1.4 Clients may not assign or transfer their rights and obligations under contracts con-cluded with the Company to third parties without the Company’s written consent.
Article 2 Prices
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 appli-cable rate, plus any transfer and payment charges, and bank or cheque fees, as well as any customs duties or charges applica-ble to deliveries abroad.
2.3 Unless otherwise agreed in writing, prices are stated net ex-works, i.e. without pack-aging, loading, transport and insurance.
2.4 For deliveries within eight months, the ap-plicable price is that indicated in the order confirmation. Prices may be adjusted if the scheduled delivery date is more than eight months after the date the contract was signed. In that case, the price list on the delivery date shall apply. If that price is over 10% more than the agreed price, the Company shall promptly notify the client. The latter shall then be entitled to demand the cancellation of the contract by written notice to the Company within one week of receiving the aforesaid notification. Not-withstanding, the contract may be main-tained at the original price if, within one week of receiving the notice of cancellation, the Company sends the client a written confirmation that delivery will be made at the original price.
Article 3 Technical Data, Registration
3.1 Plans, drafts and other technical documen-tation 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 di-vulge such documentation to third parties or to use it for any purpose other than that for which it was given to him without the Com-pany’s express written consent.
If no order is placed, the complete docu-mentation shall be returned to the Compa-ny; if an order is placed, the documentation must only be returned at the Company’s re-quest.
3.2 Descriptions, specifications, measure-ments, pictures, colour indications, sketch-es and drawings, weights and other perfor-mance data contained in brochures or other materials only give an approximate render-ing 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 or other changes which do not affect the func-tioning of the product are reserved. The foregoing applies in all cases except where specifications or characteristics are ex-pressly guaranteed or declared binding. In-significant variances between the described and actual specifications do not constitute a defect.
3.3 The client is responsible for registering the vehicles with the road traffic authorities if such registration is required. The Company does not guarantee registrability. Nor is the client entitled to demand that the Company apply for any waivers or exceptions, for ex-ample under German Road Traffic Regula-tions (StVZO), or the industrial safety and construction guidelines of the relevant mo-tor vehicle manufacturer. Nevertheless, the Company shall assist the client as best as it can in this regard.
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 spe-cific delivery date or delivery period is con-firmed individually to the client in writing. Delivery periods start running when the cli-ent receives the order confirmation.
4.2 Unless it is unreasonable for the client, partial deliveries and partial invoices shall be 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 re-quest. If the client is entitled to compensa-tion 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 rea-sonable deadline for delivery after expiry of the relevant period. Claims for damages in-stead of performance are excluded in the case of slight negligence.
If, during the delivery period, the client re-quests any changes in the design or with regard to the scope of delivery or if he does not meet his contractual obligations punctu-ally when they are due, the term of the de-livery 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, deviations in color and and changes in the scope of de-livery on the part of the manufacturer re-main changes to the scope of delivery dur-ing the delivery period, provided that chang-es or deviations, taking into account the in-terests of the interests of the seller are rea-sonable for the buyer. If the seller or the manufacturer for the designation of the or-der or the ordered object of purchase, no rights can be derived solely numbers for the designation of the order or the ordered de-rived from this alone.
If delivery delays on the part of the Compa-ny are caused by delivery delays on the part of its suppliers or by any other circum-stances 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 de-lays caused by events of force majeure in-cluding strikes, lock-outs, public ordinanc-es, extreme weather conditions, traffic dis-ruptions, breakdown of operations or similar events. § 323 of the German Civil Code ap-plies, with the proviso that the time limit shall be of at least thirty (30) days. The cli-ent 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 com-pensation 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 ninety (90) 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 as-signment. If, as a result, the performance period is extended or the Company is re-leased 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 ef-fects 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 de-livery time. The parties shall agree in good faith on reasonable compensation and ex-tension of delivery time. In addition, Seller shall be entitled to additional costs and/or delivery time extensions a) caused by Buy-er’s delay and/or b) resulting from a change in the law, including any instruc-tions/restrictions imposed by governmental measures, as of Seller’s offer date, which affect the performance of the contract.
4.4 Unless otherwise contractually agreed in individual cases, all risks shall pass to the customer upon acceptance of the vehicle. Vehicles shipped to the client are shipped at the client’s cost and risk. The risk passes to the client when the vehicle is delivered to the forwarding agent, carrier or other ship-per. Transport insurance will only be con-tracted at the client’s express demand and at his expense.
4.5 For deliveries abroad, the client alone is responsible for ensuring compliance with the import rules of the country of destina-tion. It is for the client to obtain all requisite licences and authorisations.
4.6 If a vehicle which is ready for delivery can-not be shipped through no fault of the Com-pany, or for reasons attributable to the cli-ent, or if the client does not accept delivery of the purchased vehicle within eight days of receiving the Company’s notice that the vehicle is ready for delivery at the agreed place, the Company shall charge the client demurrage from the 10th day, at the rate of euro 1,000 per day plus VAT at the applica-ble rate. All further rights are reserved.
4.7 Article 8 also applies in case of delivery delays and non-delivery.
Article 5 Payment terms, Delayed Pick-up, Delayed Payment, assign-ment of receivables
5.1 For deliveries in Germany, the purchase price and price for added services (like transportation etc) is due and payable with-out any deductions immediately upon hand-over 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 satisfac-tion 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 of twelve (12) percentage points over the base inter-est 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 de-fault and payment of default interest.
5.3 If the client is in default of more than one payment obligation, all receivables shall be-come immediately due and payable.
5.4 A client may only offset against the Com-pany’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 con-tractual 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 enti-tled, 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 ade-quate security within that time limit, to withdraw from the relevant contracts. If, however, the goods have already been de-livered, all claims which are not yet due, in-cluding any claims backed by drafts and cheques shall become immediately due and payable as a result of the intervening de-fault. Moreover, by virtue of the Company’s retention of title, the vehicle may be repos-sessed at the client’s expense and without notice at any time, even before the pur-chase 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 applica-ble 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 re-served.
5.7 The Company may assign its claims.
5.8 The client may not assign claims against the Company without the Company’s writ-ten consent. Such consent may only be withheld for just cause.
Article 6 Retention of Title, Insurance
6.1 Delivered vehicles 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 re-lationship, including the balance of any cur-rent account claims, irrespective of the le-gal basis for such claims.
6.2 The registration documents of vehicles delivered under reserved title shall remain in the Company’s possession. The client shall look after the vehicle with all due care and have the necessary repairs carried out by the Company or a garage recommended by the Company.
6.3 The client may not sell or pledge the deliv-ered vehicles before he has acquired own-ership and the use of the vehicles may not be surrendered to third parties without the Company’s express written consent. In any event, any claims of the client against third parties in connection with the surrender of use or pursuant to official orders are deemed to be assigned to the Company.
6.4 As long as the Company retains ownership of the vehicle, the client shall maintain full Casco insurance coverage and assign all rights under the insurance policy to the Company. If the client fails to do so, the Company may contract full Casco insur-ance at his expense and charge the premi-ums disbursed to his account. Insurance proceeds shall be fully applied to the cost of repairing the vehicle still under retention of title. If the vehicle is a total loss, the insur-ance benefits shall be used to repay the Company’s claims. The client shall be enti-tled to any surplus amounts.
6.5 The client shall immediately object to any third-party actions (e.g. seizure or attach-ment) affecting the vehicles delivered under retained title or the claims assigned to the Company, referring to the Company’s rights. He shall promptly notify the Compa-ny in writing of any such action, remitting to the Company the necessary documents (e.g. the record of attachment) enabling it to take action.
6.6 If the client fails to pay any amount when due or otherwise infringes his contractual obligations, the Company shall be entitled to repossess the vehicle at the client’s ex-pense or to demand the assignment of the client’s claims for return against third par-ties. The assertion of the Company’s rights of retention and its repossession or seizure of the vehicle do not qualify as a withdrawal from the contract.
6.7 The retention of title also secures any liabili-ties which may arise from an official receiv-er’s unilateral choice of performance.
6.8 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 deliv-eries are excepted.
6.9 If, in the country of destination, effective title cannot be retained or cannot be re-tained to the required extent, the client shall automatically put up securities offering the closest possible replacement value to the retention of title.
Article 7 Warranties
7.1 The Company’s warranties presuppose that the client promptly notifies it of any defects in the vehicle or any wrong or incorrect de-liveries. § 377 of the German Commercial Code is applicable, with the proviso that de-fects must be notified and accurately de-scribed to the Company in writing. Appar-ent 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 de-livery. The client shall, at the Company’s option, return the faulty vehicle or allow the Company to check the vehicle and remedy the defect on site.
7.2 The Company’s warranties do not cover normal wear and tear of the vehicle or of any replacement or expendable parts such as nozzles, for example; nor do the warran-ties extend to defects caused by the client or by third parties, for example through im-proper alteration, use or handling of the ve-hicle or through lack of repair and mainte-nance. Moreover, the warranties presup-pose that the manufacturer’s specific in-structions for the use and maintenance of the vehicles are duly observed in accord-ance with the service book and that maintenance is carried out and documented by the Company or by work shops ap-proved by the Company. The client is ex-pressly 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 condi-tions, such as water quality in particular.
7.3 The Company’s warranties are first limited to the right to remedy or replace the defec-tive parts at its option. If this is not effec-tive or if the client can show that such a so-lution is unreasonable for him on other grounds, the client may, at his choice, ask for a decrease in price (reduction) or with-draw from the contract. The client is only entitled to demand the full replacement of the vehicle if the defects can be shown to be due to a construction error or faulty ma-terials which render the whole vehicle unfit for use.
7.4 Claims based on defects become time-barred two (2) years after delivery. For spare parts and expendable parts, however, claims are time-barred after one (1) year.
7.5 If a vehicle delivered by the Company reaches a private consumer who files a jus-tified 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 Condi-tions.
7.6 Notwithstanding the present Article, all warranties are excluded for the purchase of used vehicles.
Article 8 Liability
8.1 Unless otherwise expressly provided in these GTC, the Company’s liability for damages and expenses, on whatever grounds,
a) is excluded in case of slight negligence,
and
b) is restricted, in case of gross negligence, to the foreseeable damages typical for the contractual services.
8.2 The limitation and restriction of liability under paragraph 1(a) and (b) of this Article do not apply
a) if the damages were caused deliberately;
b) if specific properties and conditions of an object were guaranteed;
c) to injuries causing death or bodily harm or affecting a person’s health;
d) to the Company’s liability under product liability laws.
8.3 In case of breaches of essential contractual obligations, the Company’s liability is limited to the foreseeable damages typical for the contractually agreed services. For the purpose of this Article, essential contractual ob-ligations 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.
8.4 Article 8.3 also applies in case of gross negligence.
8.5 SMETS products are typically used for high-pressure cleaning and the cleaning of sewers. The liability limits in this 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 vehicles are exclusively within the client’s responsibility. The client shall pass on the foregoing information and obligations to subsequent acquirers and to his own customers.
Article 9 Export Control
The export or re-export of the purchased product may be subject in whole or in part to sanctions, export and re-export regulations (e.g. AWG, AWV, KrWaffKontrG, Dual-Use VO, EAR) as well as ordinances and regulations on restrictive measures with regard to certain countries, persons and regions. The Seller shall be released with immediate effect from the obligation to export or re-export the object of purchase if the Seller does not obtain the permits required for the export or re-export or does not obtain them in time. In this case, the Seller shall be entitled to withdraw from a contract already concluded. In this case, the Buyer shall not be entitled to any claims for damages or reimbursement of expenses. Furthermore, the Seller shall be free at any time to refuse performance of the contract for reasons of export control or sanctions law and to withdraw from the contract. In this case, the Buyer shall not be entitled to any claims for damages or reimbursement of expenses. The Buyer undertakes to comply at all times with all applicable export, re-export and import laws and regulations in connection with the use, transfer, sale, export, re-export and import of the object of purchase. Any exceptions to the foregoing require prior review and subsequent written confirmation by Seller.
Article 10 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 provisions of another legal system take mandatory precedence; the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) is precluded from application.
Article 11 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.
