General conditions of sale
SMELA GmbH, status: december 2022
§ 1 Scope, form
(1) These General Terms and Conditions of Sale (GTCS) shall apply to all our business relations with our customers ("Buyer"). The GTCS shall only apply if the Buyer is an entrepreneur (§ 14 BGB, German civil code), a legal entity under public law or a special fund under public law.
(2) The GTCS shall apply in particular to contracts for the sale and/or delivery of movable goods, irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB, German civil code). Unless otherwise agreed, the GTCS in the version valid all the time of the Buyer´s order or in any case in the version last notified to the Buyer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(3) Our GTCS shall apply exclusively. Deviating, conflicting or supplementary Genereal Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to thei application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer´s GTC.
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precendence over these GTCS. Subject to proof to the contrary, a written contract or our written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications by the Buyer with regard to the contract (e. g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing, i. e. in written or text form (e. g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the case of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
(6) References to the applicability of statutory provisions shall only have a clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e. g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve properly rights and copyrights.
(2) The order of the goods by the Buyer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 14 days of its receipt by us.
(3) Acceptance may be declared either in writing (e. g. by order confirmation) or by delivery of the goods to the Buyer.
§ 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order.
(2) If we are unable to meet mandatory delivery deadlines for reasons for which we are not responsible for (non-availability of the service), we will inform the buyer of this without delay and at the same time we notify the buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the buyer. In case of non-availability of the performance we shall be deemed to be in particular the untimely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(3) We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events predictable at the time of conclusion of the contract (e. g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which we are not responsible. If such events male it considerably more difficult or impossible for us to deliver or perform and if the hindrance is not only of temporary duration, we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duraiton, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up perod. Insofar as the Buyer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to the Seller.
(4) The rights of the Buyer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e. g. due to impossibility or unreasonableness of performance and/or supplementary performance), shall remain unaffected.
§ 4 Delivery, passing of risk, Decline, Default of Acceptance
(1) Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Buyer´s request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless ptherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be authoritative for the transfer of risk. Incidentally for agreed acceptance, legal regulations shall apply on contracts for work and services. The handover or acceptance shall be deemed equivalent if the buyer is in delay of acceptance.
(3) If the buyer is in delay of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage including additional expenses (e. g. storage costs).
The proof of higher damages and our statutory rights (in particular compensation for additional expenses reasonable compensation, dismissal) shall remain unaffected; however, the flat charge shall be set off against further monetary claims. The buyer shall be entitled to prove that we have not incurred any damage at all or only significantly less damage than the aforementioned flat charge.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not invoice the transport costs actually incurred in the individual case, a flat rate for transport costs (excluding transport insurance) of EUR 15 shall be deemed agreed. Any customs duties, fees, taxes, and other public charges shall be sustain by the Buyer.
(3) The purchase price is due and payable within 14 days from the date of invoice and delivery or acceptance of the goods. However, we shall be entitled at any time even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
(4) Upon expiration of the aforementioned payment period, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB, German commercial code) shall remain unaffected.
(5) The Buyer shall only be entitled to rights of set-off or retention to the extent that this claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer´s counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTC.
(6) If it becomes apparent after the conclusion of the contract (e. g. by filling for insolvency proceedings) that our claim to the purchase price is endangered by the buyer´s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB, German civil code). In the case of contracts for the manufacture of indefensible items (custom-made-products), we may declare withdrawal immediately; the statutory rules on the expendability of setting a time limit shall remain unaffected.
§ 6 Reservation of proprietary rights
(1) We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The purchaser must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e. g. seizures) have access to the goods belonging to us.
(3) In the event of any breach of contract by the Buyer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
(4) Until revoked in accordance with (c) below, the Buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the Buyer stated in paragraph 2 shall also apply in respect of the assigned claims.
(c) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the purchaser meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the reservation of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the buyer inform us of the assigned claims and their debtors, provide us with all information necessary for collection, hand over the relevant documents and inform debtors (third parties) of the assignment. In addition, in this case we shall be entitled to revoke the Buyer´s authorization to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release secrurities of our choice at the Buyer´s request.
§ 7 Claims for defects of the purchaser
(1) The statutory provisions shall apply to the Buyer´s rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to §§ 478 BGB, German civil code). Claims from supplier recourse are excluded if the defective goods have been further processed by the purchaser or another entrepreneur, e. g. by incorporation into another product.
(2) The basis of our liability for defects is above all the agreement made on the quality of the goods. All product descriptions and manufacturer´s specification which are the subject of the individual contract or which were made public by us (in particular the installation declaration or the product-specific data sheet) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether or not a defect exists (§ 434 para. 1 s. 2 and 3 BGB, German civil code). However, we shall not be liable for public statements made by the manufacturer or other third parties (e. g. advertising statements) to which the purchaser has not drawn our attention as being decisive for his purchase.
(4) As a matter of principle, we shall not be liable for defects of which the Buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 422 BGB, German civil code). Furthermore, the Buyer´s claims for defects shall be subject to the condition that has complied with his statutory obligations to examine the goods and to give notice of defects (§§ 377, 381 HGB, German commercial code). In the case of goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without delay. In any case, obvious defects shall be notified to us in writing within 10 working days of delivery and defects not apparent on inspection within the same period of time from discovery. If the purchaser fails to carry out the proper inspection and/or give notice of defects, our liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Our right ti refuse subsequent performance under the statutory conditions shall remain unaffected.
(6) We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain of the purchase price which is reasonable in relation to the defect.
(7) The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor its re-installation if we were not originally obliged to install it.
(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we shall be entitled to demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the buyer.
(9) In urgent cases, e. g. if operational safety is at risk or to prevent disproportionate damage, the buyer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self-remedy, if possible in advance. The right of self-execution shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(10) If the subsequent performance has failed or a reasonable period to be set by the buyer for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract reduce the purchase price. In the case of an insignificant defect, however, there shall be no right to rescission.
(11) Claims of the purchaser for damages or reimbursement of futile expenses shall also exist in the event of defects only in accordance with § 8 and shall otherwise be excluded.
§ 8 Other accountability
(1) Unless otherwise stated from these GTC including the following terms, we shall be liable in accordance with the legal regulations of contractual and non-contractual obligations.
(2) We shall be liable for compensation - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In the event of simple recklessness, we shall only be liable, subject to statutory limitations of liability (e. g. care in own affairs; insignificant breach of duty), in the following cases:
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper implementation of the contract in the frist place and on the observance of which the contractual partner regularly relies and may rely); in this case, our liability is limited to the compensation of the predictable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply to third parties as well as to breaches of duty by persons ( also by favour) whose fault we are responsible for according to statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the buyer under the Product Liability Act.
(4) Due to a breach of duty which does not consists of a defect, the buyer may only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB, German civil code) is excluded. In all other respects, the legal requirements and legal sonsequendes shall apply.
§ 9 Statue of limitations
(1) Notwithstanding Section § 438 (1) No. 3 BGB (German civil code), the general limitation period for claims airsing from material defects of tilte shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) The above limitation periods of the law on sales shall also apply to contractual and noncontractual claims for damages of the buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB, German civil code) would lead to a shorter limitation period in the individual case. Claims for damages of the buyer pursuant to § 8 para. 2 sentence 1 and sentence 2 (a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 10 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GCS and the contractual relationship between us and the Buyer to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Magdeburg. The same shall apply if the buyer is an entrepreneur within the meaning of § 14 BGB (German civil code). However, in all cases we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GCS or a prior individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.