Schmitz Feuerwehrtechnik GmbH
General Terms and Conditions of Sale and Delivery
1. General Provisions
1.1 These General Terms and Conditions of Sale and Delivery (“GTC”) apply to all deliveries and services provided to our customers (“Customer”). They apply only if the Customer is a business operator (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
1.2 These GTS apply exclusively. Any deviating terms and conditions of the Customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This shall also apply if we carry out a delivery or service without reservation whilst being aware of the Customer’s terms and conditions.
2. Quotations and Conclusion of Contract
2.1 Our offers are subject to change and non-binding, unless we have expressly made a binding offer (see clause 2.3). This also applies to information provided during the processing of the offer, in particular regarding dimensions, weights, performance and consumption data, if and insofar as such information is not confirmed by us in our binding offer or in the order confirmation.
2.2 Unless we have made a binding offer, the contract shall come into effect upon the customer’s order following our written order confirmation.
2.3 A binding offer on our part shall only be deemed to exist if we have expressly designated our offer as binding. We shall be bound by binding offers for a period of 3 months, unless we specify a different period or, in the case of a tender, a shorter binding period is stipulated.
2.4 All contractual provisions, as well as the nature and scope of our delivery and services, shall be set out by us in the order confirmation or in our binding offer.
3. Prices
3.1 The prices quoted in our information materials refer to our standard versions, which comply with relevant standards.
3.2 Value added tax at the applicable statutory rate is added to all prices.
3.3 For orders with a net value of up to €100.00, we charge a minimum order surcharge of €10.00.
3.4 Unless otherwise agreed in individual cases, we deliver goods FCA Farnstädt.
3.5 Should increases in material costs, labour costs or transport costs occur after the conclusion of the contract, we are entitled to adjust prices in accordance with the respective weighting of these factors. This does not apply if the goods are to be delivered within 3 months of the conclusion of the contract.
4. Delivery time, delivery
4.1 The delivery period shall be agreed on a case-by-case basis or specified by us when we submit a binding quotation or in the order confirmation. Delivery periods are always calculated from the date the contract is concluded. If no such period is specified, the delivery period shall be approximately 4 weeks from the date the contract is concluded.
4.2 If the customer’s cooperation is required, compliance with the delivery period is conditional upon the timely response to enquiries, the provision of necessary drawings and documents, the delivery of components to be supplied by the customer, and the granting of all necessary approvals and authorisations within a reasonable timeframe. The customer must deliver the components to be supplied in a functional, ready-to-install condition, on time and in accordance with the requirements defined by us, at their own expense. We reserve the right to subject delivered parts to our own inspection and, in the event of unsuitability, to refuse to install the delivered parts. The delivery period shall be extended accordingly if the customer’s obligations are not fulfilled within a reasonable period for reasons for which we are not responsible.
4.3 If failure to meet the delivery deadline is attributable to force majeure, mobilization, war, civil unrest, strike, lockout, or other unforeseeable obstacles affecting our operations—for which we are not responsible and which occurred or came to our attention after the conclusion of the contract—the delivery deadline shall be extended accordingly. This also applies in cases of unforeseeable events affecting the operations of our supplier and for which neither the supplier nor we are responsible. If the failure to meet the delivery time is attributable to delivery difficulties or delays by suppliers as a result of the global COVID-19 pandemic, we shall not be liable for any delivery delays, and the delivery time shall be extended appropriately, provided that we have placed the order with the respective supplier in a timely manner.
4.4 If shipment is delayed at the customer’s request or for other reasons for which the customer is responsible, we may, beginning one month after notification of readiness for shipment, charge the costs incurred due to storage, but at a minimum a storage fee of 0.5% of the invoice amount for each month or portion thereof. The storage fee is limited to a total of 5% of the invoice amount, unless we can prove that we incurred higher costs. The customer is entitled to prove that we incurred no damage at all or only significantly less damage than the above-mentioned flat rate.
5. Shipping, Transfer of Risk, Acceptance
5.1 Our products are shipped FCA Farnstädt in accordance with Section 3.4.
5.2 The risk of loss or damage passes to the customer no later than upon delivery. In the case of FCA Farnstädt delivery, the customer is responsible for picking up the goods, and the transport risk passes to the customer upon loading.
5.3 We will only take out insurance for FCA Farnstädt deliveries at the express request of the customer, who shall bear the costs.
5.4 If the customer is in default of acceptance, the risk passes to the customer. If the pickup or shipment of the goods is postponed beyond the agreed delivery date at the customer’s request, the preceding sentence applies accordingly. At the customer’s request, we will take out the insurance policies requested by the customer.
5.5 If pickup or shipment is delayed at the customer’s request or for other reasons for which the customer is responsible, we may, beginning one month after the delivery deadline or notification of readiness for shipment, charge the costs incurred due to storage, but at a minimum a storage fee of 0.5% of the invoice amount for each month or portion thereof. The storage fee is limited to a total of 5% of the invoice amount, unless we can prove that we incurred higher costs. The customer is entitled to prove that we incurred no damage at all or only significantly less damage than the above-mentioned flat rate.
6. Terms of Payment
6.1 Unless otherwise agreed in individual cases, invoices are payable within 10 days of the invoice date and delivery or acceptance of the goods, without any deductions.
6.2 Cash discounts are only permitted if they have been expressly agreed upon and the customer has settled or is simultaneously settling all outstanding invoice amounts owed to us.
6.3 However, even within the context of an ongoing business relationship, we are entitled at any time to make a delivery, in whole or in part, only against advance payment. We shall declare such a reservation at the latest in our binding offer or our order confirmation.
6.4 We accept bills of exchange only on the basis of a special agreement. The acceptance of bills of exchange or checks is always only on account of performance.
6.5 MThe customer shall be in default upon expiration of the payment term. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages resulting from default. Our claim to commercial due interest (Section 353 of the German Commercial Code (HGB)) remains unaffected with respect to merchants.
7. Claims for Defects
7.1 Unless otherwise specified below, the statutory provisions apply to the customer’s rights in the event of material defects or defects of title. The customer’s statutory claims for recourse against us in the event of final delivery of the goods to a consumer (supplier recourse pursuant to § 478 BGB) remain unaffected.
7.2 Claims for defects by the customer require that the customer has fulfilled their statutory obligations to inspect and give notice of defects (Sections 377, 381 HGB). If a defect becomes apparent during the inspection or later, we must be notified of this in writing without delay. Notification is deemed to be immediate if it is made within 10 days, whereby timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer must report obvious defects (including incorrect or short deliveries) in writing within 10 days of delivery, whereby, again, timely dispatch of the notice is sufficient to meet the deadline. If the customer fails to conduct a proper inspection and/or report defects, our liability for the unreported defect is excluded. If acceptance has been agreed upon or is required, § 640 BGB applies. If an initial sample inspection has been agreed upon, the customer may not raise a complaint regarding defects that the customer should have detected during a careful initial sample inspection.
7.3 Our liability for defects is based primarily on the agreement regarding the quality of the goods. If we are required to deliver goods based on the customer’s drawings, specifications, samples, etc., the customer assumes the risk of suitability for the intended purpose. To the extent that the quality has not been agreed upon, the existence of a defect shall otherwise be determined in accordance with statutory provisions.
7.4 If the goods are defective, we have the right to choose whether to provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). To the extent that we are entitled under the statutory requirements to refuse subsequent performance, this right remains unaffected.
7.5 The customer must give us the opportunity to verify the reported defect, and the goods subject to complaint must be handed over for inspection upon request. In the event of a replacement delivery, the customer must return the defective item to us in accordance with statutory provisions.
7.6 We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transportation, travel, labor, and material costs, if the complaint is justified.
7.7 f the remedy has failed, or if a reasonable period for the remedy set by the customer has expired without result or is not required by law, the customer may rescind the purchase contract or reduce the purchase price. However, there is no right of rescission in the case of a minor defect.
7.8 Claims by the customer for damages or reimbursement of futile expenses, including those arising from defects, are permitted only in accordance with Section 8 and are otherwise excluded.
8. Other Liability
8.1 Unless otherwise provided in these General Terms and Conditions, including the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions.
8.2 We shall be liable for damages—regardless of the legal basis—under the principle of fault-based liability in cases of intentional misconduct and gross negligence. In cases of simple negligence, we are liable only a) for damages resulting from injury to life, limb, or health, b) for damages resulting from a non-trivial breach of a material contractual obligation (an obligation whose fulfillment is essential for the proper performance of the contract and whose breach limits the contractual partner’s claim to compensation for foreseeable, typically occurring damages).
8.3 The limitations of liability arising from Section 8.2 also apply in the event of breaches of duty by or in favor of persons for whose fault we are responsible under statutory provisions. They do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods, nor do they apply to claims by the customer under the Product Liability Act.
8.4 In the event of a breach of duty that does not consist of a defect, the customer may only rescind the contract or terminate it if we are responsible for the breach of duty. In all other respects, the statutory requirements and legal consequences apply.
9. Statute of Limitations
9.1 The general statute of limitations for claims for defects is 12 months from delivery. If acceptance has been agreed upon, the statute of limitations begins with acceptance. This does not apply if the law mandatorily prescribes longer periods, in particular for defects in a structure and in goods that were used for a structure in accordance with their customary use and caused its defectiveness.
9.2 SHowever, the Customer’s claims for damages pursuant to Section 8.2, Sentences 1 and 2(a) of these General Terms and Conditions of Sale, as well as under the Product Liability Act, shall be subject exclusively to the statutory limitation periods.
10. Retention of Title
10.1 We retain title to the delivered goods until all claims arising from the business relationship with the customer have been satisfied. The customer is entitled to sell these goods in the ordinary course of business, provided that the customer fulfills its obligations arising from the business relationship with us in a timely manner. However, the customer may neither pledge the goods subject to retention of title nor assign them as security. The customer is obligated to safeguard our rights in the event of the resale of the goods subject to retention of title on credit. In the event of a breach of duty by the customer, in particular in the event of default in payment, we are entitled to withdraw from the contract and demand the return of the goods after the unsuccessful expiration of a reasonable deadline set for the customer; the statutory provisions regarding the dispensability of setting a deadline remain unaffected. The customer is obligated to surrender the goods.
10.2 The customer hereby assigns to us, by way of security, all claims and rights arising from the sale or any other disposal of goods to which we hold title rights, which may be permitted to the customer. We hereby accept the assignment.
10.3 Any processing or treatment of the goods subject to retention of title shall always be carried out by the Customer on our behalf. If the goods subject to retention of title are processed or inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the other processed or mixed items at the time of processing or mixing.
10.4 If our goods are combined with other movable items to form a single item or are inseparably mixed, and if the other item is to be regarded as the principal item, the customer shall transfer to us proportionate co-ownership to the extent that the principal item belongs to the customer. The customer shall hold the ownership or co-ownership in trust for us. In all other respects, the same provisions apply to the item created through processing, combination, or mixing as to the goods subject to retention of title.
10.5 The customer must immediately notify us of any enforcement measures by third parties against the goods subject to retention of title, the claims assigned to us, or other securities, specifying the documents necessary for intervention. This also applies to impairments of any other kind.
10.6 If the value of the existing security exceeds the secured claims by more than 10% in total, we are obligated, at the customer’s request, to release security of our choice to that extent.
11. Design Changes, Documentation
We reserve all property rights and copyrights to samples, cost estimates, drawings, and similar materials, as well as to information of a tangible and intangible nature—including in electronic form. This information, as well as any other information designated as confidential, may not be disclosed to third parties without our express consent. We will also only disclose information and documents designated as confidential by the customer to third parties with the customer’s consent.
12. Final Provisions
12.1 The contractual relationship shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
12.2 If the customer 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 place of jurisdiction for all disputes arising from the contractual relationship shall be our place of business in Farnstädt. However, we are also entitled to bring an action at the customer’s general place of jurisdiction. Prevailing statutory provisions, in particular those regarding exclusive jurisdiction, remain unaffected.