General Terms and Conditions
General Terms and Conditions GTC of SCHMITT-Kreiselpumpen GmbH & Co. KG
As of: March 2025
General Terms and Conditions
GTC of SCHMITT-Kreiselpumpen GmbH & Co. KG
Status: March 2025
1. General, Scope of Application
1.1
Our terms and conditions of sale shall apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement for consent shall apply in all cases, for example, even if the Buyer refers to its own terms and conditions within the scope of the order and we do not expressly object to them.
1.2
Individual agreements and details in our order confirmation shall take precedence over these terms and conditions of sale. Trade clauses shall, in case of doubt, be interpreted in accordance with the Incoterms® 2020 issued by the International Chamber of Commerce (ICC), Paris.
1.3
Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g., setting deadlines, notices of defects, withdrawal or reduction) must be made in writing. Written form within the meaning of these terms and conditions includes written and text form (e.g., letter, email, fax). Statutory formal requirements and further evidence, particularly in cases of doubt regarding the legitimacy of the declaring party, remain unaffected.
1.4
References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these terms and conditions of sale.
2. Offers and Offer Documents
2.1
Our offers are non-binding unless otherwise stated in the order confirmation.
2.2
This also applies if we have provided the Buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, cost calculations, references to DIN standards), other product descriptions or documents – also in electronic form – for which we reserve ownership and copyright.
3. Delivery and Transfer of Risk
3.1
Unless otherwise stated in the order confirmation, delivery shall be agreed “Free Carrier” Ettlingen (FCA Incoterms® 2020).
The delivery period shall be agreed individually or specified by us upon acceptance of the order. The commencement of the delivery time specified by us requires clarification of all technical questions.
If requested by the customer, we will take out transport insurance for the delivery; the costs incurred shall be borne by the customer.
3.2
We are entitled to withdraw from the contract if, despite the prior conclusion of corresponding purchase contracts, we are not supplied, not supplied on time, or not supplied completely by one of our upstream suppliers and are therefore unable to deliver the purchased goods; our responsibility for intent and negligence remains unaffected. We shall inform the customer immediately about our own non-delivery and, if we intend to withdraw, exercise the right of withdrawal without delay. In the event of withdrawal, we shall immediately reimburse the customer for any consideration already received.
3.3
Compliance with our delivery obligation further requires the timely and proper fulfillment of the customer’s obligations. The defense of non-performance of contract remains reserved.
3.4
If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred, including any additional expenses. Further claims or rights remain reserved.
3.5
If the conditions of Clause 3.3 apply, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer at the time the customer is in default of acceptance or debtor’s default.
3.6
The occurrence of our default of delivery shall be determined in accordance with statutory provisions. In any case, however, a reminder from the Buyer is required.
3.7
The rights of the Buyer pursuant to Clause 6 of these terms and conditions and our statutory rights, particularly in the event of exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
4. Prices and Terms of Payment
4.1
Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, namely “Free Carrier” Ettlingen (FCA Incoterms® 2020), plus statutory VAT.
4.2
Packaging material shall be invoiced separately and will not be taken back.
4.3
Cash discount deductions require a special agreement.
4.4
The purchase price is due and payable within 30 days from invoicing and delivery or acceptance of the goods. However, even within 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 with the order confirmation.
Upon expiry of the above payment period, the Buyer shall be in default. During the period of default, the purchase price shall bear interest at the statutory default interest rate. We reserve the right to assert further damages caused by default. With respect to merchants, our claim to commercial maturity interest (§ 353 German Commercial Code – HGB) remains unaffected.
4.5
The Buyer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established or is undisputed.
5. Warranty for Defects
5.1
The basis of our liability for defects is primarily the agreement reached regarding the quality and the intended use of the goods (including accessories and instructions).
The suitability of the pumps with regard to various chemicals is derived from our resistance list. The information contained therein has been compiled to the best of our knowledge and based on available experience. Due to the variety of possible applications of the purchased goods, however, only a lack of suitability (“not resistant”) is agreed. “Resistance” or “conditional resistance” cannot be guaranteed in general and depends on the specific use by the customer. Accordingly, no guarantee of quality is assumed.
Product descriptions and manufacturer information that are the subject of the individual contract or were publicly announced by us (in particular in catalogs or on our website) at the time of conclusion of the contract shall also be deemed agreements on quality within this meaning. If the quality has not been agreed, it shall be assessed in accordance with statutory provisions whether a defect exists (§ 434 para. 3 BGB). Public statements by the manufacturer or on its behalf, in particular in advertising or on the product label, shall take precedence over statements by other third parties.
5.2
Warranty claims of the customer require that the customer has properly fulfilled its obligations to inspect and give notice of defects in accordance with § 377 HGB.
5.3
If the purchased goods are defective, we are entitled, at our discretion, to subsequent performance in the form of remedying the defect or delivering a new defect-free item. In the event of remedy or replacement delivery, we shall bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, insofar as these are not increased by the fact that the purchased goods have been taken to a place other than the place of performance.
5.4
If subsequent performance fails, the customer shall be entitled, at its discretion, to withdraw from the contract or demand a price reduction.
6. Liability
6.1
Unless otherwise stated in the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions.
6.2
We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in cases of intent and gross negligence. In cases of simple negligence, subject to statutory limitations of liability, we shall only be liable:
a) for damages arising from injury to life, body, or health,
b) for damages arising from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
6.3
The limitations of liability arising from Clause 6.2 shall also apply vis-à-vis third parties and in the event of breaches of duty by persons (also in their favor) whose fault we are responsible for under statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed or for claims of the Buyer under the Product Liability Act.
6.4
Due to a breach of duty that does not consist of a defect, the Buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular pursuant to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
7. Retention of Title
7.1
We retain title to the purchased goods until receipt of all payments arising from the delivery contract. In the event of breach of contract by the customer, in particular in the event of default in payment, we are entitled to demand return of the purchased goods. The demand for return of the purchased goods shall constitute withdrawal from the contract. After repossessing the purchased goods, we are authorized to realize them; the proceeds of realization shall be credited against the customer’s liabilities minus reasonable realization costs.
7.2
The customer is obliged to treat the purchased goods with care; in particular, the customer is obliged to insure them adequately at replacement value against fire, water, and theft damage at its own expense. If maintenance and inspection work is required, the customer must carry this out in good time at its own expense.
7.3
Goods subject to retention of title may neither be pledged to third parties nor transferred by way of security before full payment of the secured claims. The Buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties access the goods belonging to us (e.g., seizures). If the third party is not able to reimburse us for the costs of legal action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
7.4
Until revoked in accordance with (c) below, the Buyer is authorized 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 also apply:
(a) The retention of title shall extend to the products resulting from processing, mixing, or combining our goods at their full value, whereby we shall be deemed the manufacturer. If the ownership rights of third parties remain in the event of processing, mixing, or combining with goods of third parties, 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 subject to retention of title.
(b) The Buyer hereby assigns to us, as security, any claims against third parties arising from the resale of the goods or the product, in full or in the amount of our possible co-ownership share. We accept the assignment. The obligations of the Buyer stated in Clause 7.3 shall also apply with regard to 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 Buyer meets its payment obligations towards us, there is no deficiency in its performance capability, and we do not assert the retention of title by exercising a right pursuant to paragraph 3. If this is the case, however, we may demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents, and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the Buyer’s authority to resell 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 securities of our choice at the Buyer’s request.
8. Limitation Period
8.1
In deviation from § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence with acceptance.
8.2
Statutory special regulations on limitation periods remain unaffected (in particular § 438 para. 1 no. 1 and no. 2, para. 3, §§ 444, 445b BGB).
8.3
The above limitation periods of sales law shall also apply to contractual and non-contractual claims for damages by the Buyer based on a defect in the goods, unless the application of the regular statutory limitation (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the Buyer pursuant to Clause 6.2 sentence 1 and sentence 2(a) and under the Product Liability Act shall be subject exclusively to the statutory limitation periods.
9. Place of Jurisdiction and Place of Performance
9.1
Our registered office shall be the place of jurisdiction; however, we are also entitled to sue the customer at the court of its registered office. Mandatory statutory provisions, in particular regarding exclusive jurisdiction, remain unaffected.
9.2
The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
9.3
Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.