General Terms and Conditions for the sale of goods
1. Scope of application, General
1.1 For goods and services carried out by Schmitz u. Söhne GmbH & Co. KG (Contractor) for entrepreneurs, legal persons under public law or special funds under public law (Customer), the delivery of goods and supply of services by the Contractor shall be governed exclusively by these general terms and conditions (« Terms and conditions » or « GTC »). Entrepreneurs within the meaning of these GTC are persons who are carrying out their commercial or self-employed business at the time the contract is signed.
1.2 Deviations from these terms and conditions require the Contractor’s written confirmation. Deviating terms and conditions of the Customer or third parties are not applicable even in cases where the Contractor does not explicitly contradict their validity in an individual case. These terms and conditions are valid also if the Contractor, in knowledge of contradicting or deviating conditions of the Customer, unconditionally carries out the supply to the Customer.
1.3 The version of terms and conditions valid at the time the contract is signed is binding. These terms and conditions are also valid for future supplies, services or offers to the Customer even if they are not again separately agreed.
2. Offers, Conclusion of contract
2.1 The presentation and tender of items in our catalogue do not represent binding offers for the conclusion of a contract, they represent rather an invitation to potential customers to order the products.
2.2 All offers of the Contractor are subject to change and non-binding provided they are not explicitly stated as binding or contain a defined acceptance period. A contract – unless otherwise agreed – is concluded only after written order confirmation by the Contractor.
2.3 The scope of services established by the order confirmation is binding and conclusive. Deviations and/or amendments to the contract are only valid with written confirmation by the Contractor.
2.4 Declarations made by the Contractor in connection with this contract (e.g. service description, reference to norms like DIN or EN etc.) are only descriptions of the goods and services and do not represent any provisions of guarantees. A provision of a guarantee is only present if this is expressly declared by the Contractor.
2.5 Information regarding our goods and services contained in our catalogues, prospectuses, general offers or accompanying documents (e.g. illustrations, drawings, indications of weight and measurements) may contain deviations and are only approximately decisive unless they are explicitly stated as being binding or the usability for the purpose of the contract requires precise conformity. These specifications are not guaranteed characteristics but rather a description or identification of the goods or services.
2.6 The Contractor reserves the property rights and copyright for the templates, cost estimates, drawings and similar information issued by him, regardless of whether they are in physical, immaterial or electronic form. They may not be made available to third parties.
2.7 The Contractor is entitled to deliver or supply outstanding goods or services only in return for prepayment or collateral, if after conclusion of the contract circumstances become known that could significantly reduce the credit rating of the Customer whereby payment by the Customer to the Contractor of the outstanding claims from the respective contractual relationship is endangered (including other individual orders under the same framework contract).
The Customer undertakes to keep confidential, even after the end of the contractual relationship, all business, operating or technical matters of the Contractor known or what became known in connection with the contract, so long as and provided this information is not otherwise publicly known or if the Contractor dispenses with the confidentiality clause in writing.
4. Prices, payment terms
4.1 Prices are stated in EURO ex works 59199 Bönen (EXW according to Incoterms 2010) plus packaging, statutory VAT, including customs and fees for export deliveries and other public charges. The deduction of a discount is only permissible following written special agreement. In so far as the agreed prices are based on the list prices of the Contractor and delivery is to occur over four months after conclusion of the contract, the Contractor’s valid list prices at the time of delivery apply (in each case minus the agreed percentage or fixed discount).
4.2 Invoices, unless otherwise agreed, are to be paid upon receipt of the goods or services in the agreed currency without reduction. The cost of payment is borne by the Customer.
4.3 Payment arrears, regardless of fault of the Customer, are subject to the statutory interest on arrears. In case of default, the statutory rights to damages and withdrawal from the contract are retained. EUR 5,00 is charged per overdue notice after onset of the default, unless higher costs have been accrued.
4.4 The Contractor reserves the right to use payments to settle the oldest due invoice items including the interest and costs accrued on them. This is to occur in the order: costs, interest, principle debt.
4.5 Unless otherwise agreed, payment to the Contractor for the delivery of goods and supply of services abroad is to occur by way of an irrevocable and confirmed letter of credit from a major European bank, payable to the Contractor upon presentation of the documents to this bank.
4.6 Cheques and other means of payment are only accepted following special agreement and only as a conditional payment. For this payment method, the receipt of payment date is the day the amount is available to the Contractor. Discount and collection charges are borne by the Customer.
4.7 In the case of ‘as new’ reconditioned parts, if the Contractor reconditioned the parts, he must subject to VAT 10% of the value of the merchandise being the old part value in addition to the exchange amount, pursuant to the German Value-added Tax Act. The VAT can be charged to the Customer.
4.8 Additional fees for small orders
For small orders under EUR 50,00 (net), the Contractor is entitled to charge a processing fee of EUR 15,00 plus statutory VAT.
5. Delivery and delivery time
5.1 Deliveries are made ex works 59199 Bönen (EXW according to Incoterms 2010).
5.2 The Contractor is entitled to make partial deliveries provided this is reasonable for the Customer.
5.3 Adherence to the delivery deadlines for goods and services requires all commercial and technical questions to be clarified between the Contractor and Customer and that the Customer has fulfilled all his obligations, e.g. the provision of documentation, other material provisions, approvals or releases, or the making of an advance payment. If this is not the case, the delivery lead time shall be extended appropriately. This does not apply if the Contractor is responsible for the delay.
5.4 The delivery deadline is adhered to if up until the due date the delivery items have left the factory or readiness for dispatch has been declared. If acceptance is to take place, the acceptance date – except for justified rejection of acceptance – is decisive or alternatively the notification of readiness for acceptance.
5.5 If the dispatch or acceptance of the delivery item is delayed for reasons the Customer is responsible for, the costs associated with the delay will be charged within a month after notification of dispatch or readiness for acceptance.
5.6 The deadline for the delivery of goods and supply of services is extended as appropriate by the period of obstruction in cases of force majeure, in particular natural events, machine damage and other operating disruptions, actions taken in the course of labour disputes, in particular strikes and lock-outs, as well as in the case of unforeseeable obstacles and incorrect or late self-supply, provided the Contractor is not responsible for this. To the extent that such events significantly impede the delivery of goods or supply of services by the Contractor or make this impossible and the obstruction is not only for a temporary period, the Contractor is entitled to withdraw from the contract. Insofar as the Customer cannot reasonably accept the delivery or supply due to the delay, he can withdraw from the contract following prompt written declaration to the Contractor.
5.7 For deliveries to countries in the European Union, the Customer is obliged to provide the Contractor with his VAT registration number (VAT ID) upon order at the latest.
5.8 If the Contractor incurs delay in the delivery of goods or supply of services or if delivery or supply is impossible for whatever reason, the liability of the Contractor is limited to damages pursuant to clause 10.
6. Shipment, packaging, transfer of risk
6.1 Unless otherwise agreed, deliveries by the Contractor are made ex works 59199 Bönen (EXW according to Incoterms), not including packaging.
6.2 The risk of accidental loss or accidental deterioration of the goods is transferred to the Customer at the latest with the handover of the delivery item (the start of the loading process) to the forwarder, carrier or other third party carrying out the dispatch. This also applies if partial deliveries are carried out or the Contractor assumed other services (e.g. shipment or installation). If shipment or handover is delayed due to circumstances caused by the Customer, the risk is transferred to the Customer on the day the delivery items are ready to be dispatched and the Contractor notified the Customer accordingly.
6.3 If the Contractor carries out the installation and/or start of operation of the delivery items within the scope of the delivery contract, the risk is transferred to the Customer at the start of operation. If the commissioning is not carried out within 14 days upon the written notification of the end of the installation for reasons for which the Contractor is not responsible, the risk is transferred to the Customer after expiration of this deadline. If the installation or commissioning is delayed due to reasons for which the Customer is responsible, the risk is transferred to the Customer.
6.4 For the transfer of software by means of electronic communications media (e.g. via the internet), the risk is transferred when the software leaves the Contractor’s sphere of influence.
7.1 If the Customer is inhibited from accepting the delivery by circumstances as set out in clause 5.6 of these terms and conditions, the acceptance deadline and the deadline to notify defects pursuant to clause 8.2 is extended as appropriate.
7.2 In so far that an acceptance needs to take place, the purchased item is to be seen as legally accepted, if
• delivery and installation, in case the Contractor also owes the installation, is complete,
• the Contractor has indicated this to the Customer under the provisions of notional acceptance as per clause 7.2 and has called upon him to accept,
• two weeks have ensued since delivery and installation or the Customer has started using the purchased item (e.g. by commissioning) and in this case six business days have ensued since delivery and installation,
and the Customer has failed to accept within this period of time for a different reason than a defect notified toward the Contractor which makes a use of the item impossible or considerably impairs such use.
8. Notice of defects, warranty, material defects
8.1 Customer claims based on a warranty pursuant to clause 8 are time-barred to twelve months upon delivery of the delivery item or, if agreed, after commissioning of the delivery item or acceptance of the service.
8.2 The Customer is to carefully examine the delivered items promptly following delivery to him or specified third parties, in particular to determine if there are any missing parts or transport damage. In the case of transport damage, a damage report is to be filled out to secure any possibly damage claims against the transport company (post, rail, forwarder etc.). The Contractor should be notified of this damage report without delay.
8.3 Delivered items with obvious defects or other defects that would have become apparent following careful and prompt inspection, are deemed to be approved by the Customer if the Contractor does not receive a written notice of defects within two weeks of delivery. Dispatch of the notification of defects within this period shall suffice. With regards to other defects (hidden defects), the delivery items are deemed to be approved by the Customer if the notification of defects is not received by the Contractor within two weeks after the defect becomes apparent. If the defect was recognizable to the Customer in the course of normal use at an earlier date, this earlier date represents the start of the defect notification deadline.
8.4 On request of the Contractor, a contested delivery item is to be sent back to the Contractor with return freight paid. In the case of legitimate notification of defect, the Contractor shall reimburse the costs of the cheapest method of dispatch. This does not apply if the costs are higher because the delivery item is at a location other than that of intended use.
8.5 In the case of material defects of the delivered items, the Contractor is obliged and entitled to make a decision within a reasonable time period as whether to repair or replace the item. In the case of failure, i.e., impossibility, unreasonableness, refusal or undue delay of the repair or replacement, the Customer can withdraw from the contract or appropriately reduce the purchase price.
8.6 There is no defect if the item is suitable for the usual use and a characteristic is exhibited, which is usual for items of the same kind and that could have been anticipated by the Customer. The usability of disposable products is limited to the first use. Furthermore, there is no defect in the case of defective assembly instructions if the assembly was carried out correctly. There is no defect as to quality if the Contractor delivers a marginally different quantity (up to 5% deviation) than agreed in the contract. There is also no defect as to quality in the case of unsuitable or improper use, incorrect storage, faulty assembly or commissioning by the Customer or third parties, natural wear and tear, incorrect or negligent treatment, non-compliant maintenance, use of unsuitable operating materials, faulty construction work or chemical, electrochemical or electrical influences for which the Contractor is not responsible.
8.7 If a defect is based on the fault of the Contractor, the Customer can claim damages under the specified conditions and limitations as set out in clause 10.
8.8 For defects of components of other manufacturers, which the Contractor cannot remove due to licensing or factual reasons, the Contractor will make warranty claims against the manufacturer and supplier on behalf of the Customer or assign this guarantee to the Customer. Warranty claims against the Contractor only exist for such defects under the other conditions and pursuant to the GTC if the legal enforcement of the claims stated above against the manufacturer and supplier were unsuccessful or, for example, are futile due to insolvency. The time limit on the relevant warranty claims of the Customer against the Contractor is suspended during the period of the legal dispute.
8.9 Replaced parts become the property of the Contractor.
8.10 The warranty is not applicable if the Customer changes the delivery item or allows it to be changed by third parties without approval of the Contractor and the removal of the defect thus becomes impossible or unreasonably difficult. In any event, the Customer bears the additional costs of the removal of the defects as caused by the change. If the Customer or a third party improperly conducts repairs, the Contractor shall not be liable for any of the resulting consequences. The same applies to changes made to the delivery item without prior approval of the Contractor or for the extension of software by the Customer or third parties beyond the interface envisaged by the Contractor. Only in urgent cases of endangerment of safety or prevention of disproportionate serious damage of which the Contractor is to be notified immediately, the Customer has the right to remedy defects or have them remedied by third parties and to claim reimbursement of the necessary expenses from the Contractor
8.11 In individual cases, the delivery of second-hand items as agreed with the Customer is made without any warranty of quality.
8.12 Software: The Customer examined before conclusion of the contract that the specifications of any possible software accompanying delivery are in line with his wishes and needs. The Customer is aware of the key functional features and conditions of the software. Product descriptions, representations, test programmes etc. are service descriptions and do not form part of a warranty (see clauses 2.4, 2.5). The software has the agreed characteristics and is suitable for the purposes envisaged by the contract or, in case of no agreement, is fit for normal use. It satisfies the criterion of practical suitability and has the usual qualities of software of this type. However, it is not error-free. Functional impairment of the programme resulting from hardware defects, environmental conditions or operating errors is not a defect. A negligible reduction of quality is not taken into account. Furthermore, there is no defect in case of non-reproducible software errors or errors that do not occur in the most recent software version provided to the Customer by the Contractor, if the use of the most recently provided software version is reasonable for the Customer.
9. Display goods, test goods, bridging goods
9.1 Goods supplied by the Contractor for display, testing or bridging purposes remain in the ownership of the Contractor and are not to be sold to third parties without written approval of the Contractor. The Customer of the corresponding products is liable for loss or damage, insofar as he is responsible for this or to the extent that such damage is insurable.
9.2 The consumer is obliged to carefully handle the goods provided on loan for display (« display goods »). Within the time period provided in the order confirmation and/or the delivery note, the Customer has the right to return the display goods to the Contractor if these have not been used or recycled (cleaning, disinfection, sterilisation) and are returned in the undamaged and unlabelled original packaging. If the return does not occur promptly at the end of the stated time period at the Customer’s expense and risk or if the displays goods do not meet the previously described condition, a purchase contract for the display goods is deemed to have been concluded. In this case the Customer receives a separate invoice for the goods.
9.3 The Customer undertakes to handle the goods provided on loan for testing purposes with care and according to their intended use as set out in the manufacturer specifications and bears the costs associated with the consumables which go beyond the basic equipment (« test goods »). Within the period stated in the order confirmation and/or the delivery note, the Customer has the right to return the test goods to the Contractor if these are not damaged, processed in accordance with manufacturer guidelines (i.e. cleaned, disinfected and possibly sterilised) and packed in proper form. If the return is not carried out promptly following expiry of the stated time period at the Customer’s expense and risk or the test goods do not meet the previously described condition, in particular due to excessive use, a purchase contract for the test goods is deemed to have been concluded. In this case the Customer receives a separate invoice for the goods.
9.4 The Customer undertakes to handle the goods provided on loan to bridge the repair time with care and according to their intended use as set out by the manufacturer specifications (« bridging goods »). A calculation of usage fees shall become due if the Contractor does not receive a repair order from the Customer or if the Customer returns damaged or incomplete bridging goods to the Contractor. If the return does not occur promptly at the end of the time period stated at the order confirmation and/or delivery note at the Customer’s expense and risk, a purchase contract for the bridging goods is deemed to have been concluded. In this case the Customer receives a separate invoice for the goods.
9.5 In the cases of clause 9.3 and 9.4, the Customer furthermore is responsible for compliance with the requirements of the German Medical Products Act during the time of use.
10. Liability for damages caused by fault
10.1 The liability of the Contractor for damages for whatever reason, in particular from impossibility, delay, faulty or incorrect delivery, breach of contract, breach of duties arising from contract negotiations and torts, insofar as there is fault in each case, is limited pursuant to clause 10.
10.2 The Contractor is not liable in cases of ordinary negligence of his bodies, legal representatives, employees or other vicarious agents, insofar as there is no breach of significant contractual obligations, i.e. obligations which need to be met to basically enable the proper execution of the contract, upon whose adherence the contractual partners regularly relied upon and were allowed to reply upon, and whose culpable non-fulfilment jeopardises the achievement of the purpose of the contract.
10.3 If the Contractor is liable for damages pursuant to the reasons in clause 10.2, this liability is limited to the damage foreseeable and typical at the time the contract was concluded. Furthermore, indirect damages and consequential damages that are the consequence of defects of the delivery items are only recoverable if such damage can be expected as typical upon proper use of the delivery item.
10.4 The aforementioned liability exclusions and limitations apply to the same extent to the benefit of the Contractors’ bodies, legal representatives, employees and other vicarious agents.
10.5 The limitations contained in clause 10 do not apply to liability of the Contractor for intentional behaviour and gross negligence, for the reimbursement of default-induced loss (Section 286 of the German Civil Code [BGB]), for defects whose absence the Contractor assured or guaranteed, for defects the Contractor fraudulently concealed, for injury to life, limb or health, or for violations of the Product Liability Law.
10.6 The Customer must take all necessary and reasonable measures to prevent or reduce damage, in particular the Customer has to ensure regular backup of programmes and data.
11. Offsetting, right of retention
The right to withhold payment or offset against counterclaims is only available to the Customer insofar as his counterclaims are unchallenged or found to be legally valid. Other rights of retention can only be made insofar as they are based on the same contractual relationship. Rights of retention arising from defects can only be asserted under the above conditions proportionate to the defects which have occurred.
12. Industrial property rights and copyrights, legal defects
12.1 Unless otherwise agreed, the Contractor is obliged to deliver goods and services free from third-party industrial property rights and copyrights (« property rights »). If a third party raises legitimate claims against the Customer for violation of property rights arising from deliveries by the Contractor according to contract, the Contractor is liable to the Customer under the following conditions within the time period determined in clause 8.1 of these terms and conditions.
12.2 The Contractor shall, at his choice and at his own cost, either obtain a right of use or change the relevant goods or services so that the property right is no longer infringed, or exchange the goods or services while the contractually agreed functions continue to be fulfilled. If this is not possible for the Contractor at reasonable conditions, the Customer is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any damage claims are subject to the limitations in clause 10 of these terms and conditions. The aforementioned obligations only exist insofar as the Customer promptly notifies the Contractor in writing of the third party claims, does not acknowledge a violation against the third party and leaves any protective measures and settlement negotiations to the discretion of the Contractor. If the Customer ceases to use the goods or services, he is obliged to indicate to the third party that no acknowledgment of a property right infringement is linked to this cessation of use.
12.3 Claims of the Customer are excluded if a property right infringement is caused by specifications of the Customer, by applications not foreseeable by the Contractor, by changes by the Customer or by use of the goods or services in connection with products not delivered by the Contractor.
12.4 Apart from that, clause 8 of these terms and conditions applies accordingly to legal defects. Damage claims of the Customer are subject to the limitations in clause 10 of these terms and conditions.
13. Retention of title
13.1 The Contractor retains the title to the delivered goods until payment of all Customer liabilities from the business relationship, including ancillary claims, damage claims and cashing of cheques and bills. (If individual receivables are incorporated into a current account, the retention remains in place and relates to the recognized balance.)
13.2 The Customer is obliged to carefully keep the reserved goods in custody for the Contractor, to maintain and – subject to any warranty of the Contractor for material defects according to clause 8 of these GTC – to repair them at his own expense, to sufficiently insure the goods at his own expense at replacement value against theft, breakage, fire, water or other damage within the scope of prudent commercial judgement, and to prove this on demand. The Customer transfers his claims from the insurance contracts in advance to the Contractor.
13.3 In case of contract violation by the Customer, in particular in default of payment, the Contractor is entitled to take back the delivered items without extending time for payment. In taking back items, the Contractor withdraws from the contract. If the Contractor withdraws from the contract, the Contractor can demand an appropriate fee for the duration of the release of the reserved goods for use, taking into account the normal value of the transfer for use and the loss of value which occurred in the meantime. The Customer hereby grants the Contractor access to his business and operating premises, insofar as this is necessary for collection of the delivery items. Additional statutory claims arising from the withdrawal shall remain unaffected.
13.4 The Contractor is free to seize the delivery items. This does not constitute a waiver of the retention of title. In refusing the seizure, the Customer loses his right of performance of the contract.
13.5 In the case of seizure or other third party intervention on the reserved goods or, in the case of extended retention of title, assigned receivables, the Customer has to notify the Contractor without undue delay in writing so that the Contractor can file a suit in accordance with Section 771 of the German Code of Civil Procedure [ZPO]. Costs arising from the intervention, in particular judicial and extra-judicial costs of a suit pursuant to Section 771 ZPO are to be reimbursed to the Contractor by the Customer in the case of non-recoverability.
13.6 The Customer may not, insofar as he is not a reseller according to clause 13.7, either sell, charge or dispose of the item in any other way until complete payment is made.
13.7 For resellers, the following applies in addition:
a) The Customer is entitled to sell the reserved goods in the ordinary course of business. However, this does not apply if and insofar as a prohibition of assignments regarding the purchase price claim is agreed between the Customer and his buyers. The Customer is not entitled to seizures, assignments as security or other charges. In the case of resale, the Customer is to make the transfer of ownership of the goods to his buyers dependent on complete payment of the goods.
b) The Customer already now transfers the receivables from the resale of the reserved goods to the Contractor as security for all accrued claims of the Contractor against the Customer arising from the business relationship. All ancillary and security rights including bills and cheques are included in the claims from a resale. If reserved goods are sold together with other products at a single price, the assignment shall be limited to the portion of the invoiced value which covers the reserved goods. The same shall apply in case of processed or mixed goods, being determined in proportion to the invoice value of our goods and the other processed or mixed goods.
c) The Customer is entitled to collect receivables from a resale. This shall not affect the power of the Contractor to collect receivables. However, the Contractor undertakes not to collect the receivables as long as the Customer fulfils his payment obligations arising from the proceeds collected, does not default on payment and there is no application for the opening of insolvency proceedings. If the Customer’s direct debit authority has expired, the Customer is obliged to notify the Contractor on demand of the assigned receivables and their debtors, provide all information required for collection, hand over the corresponding documents, and inform the debtors of the assignment.
13.8 The Contractor shall, if requested by the Customer, undertake to release at his own discretion any securities that he is entitled to, to the extent that the value not only temporarily exceeds the claims to be secured by more than 20%.
13.9 The Customer shall not acquire title to the fully or partly processed goods; the processing shall be free of charge for our benefit as Manufacturer in the sense of § 950 of the German Civil Code. If the Contractor should, for whatever reason, lose his rights under the retention of title, then it is hereby agreed that the Contractor shall acquire title upon processing of the goods and the Customer shall remain custodian of the goods which shall be free of charge.
13.10 If the goods in which the Contractor has retained title shall be inseparably assembled or mixed with goods that are third party property, then the Contractor shall acquire co-title in the new goods or the mixed stock. The proportion of title shall follow from proportion of the invoice value of the goods delivered by the Contractor under retention of title and the invoice value of the other goods. The regulations stated in clauses 13.1 to 13.8 shall apply accordingly regarding clauses 13.9 and 13.10.
14. Data protection
The Customer shall take note of the fact that the Contractor stores data from the contractual relationship in accordance with Section 28 of the German Data Protection Act for the purpose of data processing, and reserves the right to transmit the data to third parties (e.g. insurances), insofar as this is necessary for the performance of the contract. In particular, the location of the sold goods is included in the saved data.
15. Safety regulations
The Customer is responsible for compliance with national laws, regulations and legal safety provisions, particularly with regard to admission, installation, operation, maintenance and repair of the delivery items, and is obliged to fulfil these obligations. The Customer is obliged to indemnify the Contractor against all claims arising from non-compliance with such provisions by the Customer.
16. Applicable law, jurisdiction, severability clause, language
16.1 German law applies to the contractual relationship with the Customer. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
16.2 The jurisdiction for any possible disputes arising from the business relationship between the Contractor and Customer is, at the discretion of the Contractor, the competent court at the registered office of the Contractor or the Customer. However, in the case of legal actions against the Contractor, the registered office of the Contractor is the exclusive place of jurisdiction.
16.3 Should individual provisions in this contract violate mandatory law, as a whole or in part, or become void or invalid for any other reasons, the validity of the remaining provisions shall not be affected.
16.4 As a precautionary measure it is declared that the decisive text is that written in the German language only. The English one serves information purposes only.