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General Terms and Conditions

General Terms and Conditions of Sale of SCHMITT-Kreiselpumpen GmbH & Co. KG
As of March 2025

In the event of any discrepancy or inconsistency between the German and English versions, the German version shall prevail.

1. General Provisions and Scope of Application

1.1

These General Terms and Conditions of Sale apply to all business relationships between us and our customers (each a “Buyer”). These Terms and Conditions of Sale apply only where the Buyer is a business operator within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), a legal entity under public law or a special fund under public law.

Our Terms and Conditions of Sale shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Buyer shall become part of the contract only if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in all cases, including where the Buyer refers to its general terms and conditions in connection with an order and we do not expressly object to them.

1.2

Individual agreements and the information contained in our order confirmation shall take precedence over these Terms and Conditions of Sale. In case of doubt, trade terms shall be construed in accordance with Incoterms® 2020 issued by the International Chamber of Commerce (ICC), Paris.

1.3

Legally relevant declarations and notices by the Buyer relating to the contract, such as the setting of time limits, notices of defects, rescission or reduction of the purchase price, must be made in writing.

For the purposes of these Terms and Conditions of Sale, the requirement of writing includes both written form and text form within the meaning of German law, for example communication by letter, email or fax. Statutory formal requirements and requirements relating to further evidence, particularly in cases of doubt as to the authority of the person making the declaration, shall remain unaffected.

1.4

References to the application of statutory provisions are for clarification purposes only. Statutory provisions shall therefore apply even without such clarification, unless they are directly modified or expressly excluded by 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 shall also apply where we have provided the Buyer with catalogues, technical documentation, such as drawings, plans, calculations, cost calculations or references to DIN standards, other product descriptions or documents, including in electronic form, in respect of which we reserve title and copyright.

3. Delivery and Passing of Risk

3.1

Unless otherwise stated in the order confirmation, delivery “Free Carrier” Ettlingen shall be agreed (FCA Incoterms® 2020).

The delivery period shall be agreed individually or specified by us upon acceptance of the order. Any delivery period specified by us shall not commence until all technical matters have been clarified.

At the Buyer’s request, we shall arrange transport insurance for the delivery; the Buyer shall bear the resulting costs.

3.2

We shall be entitled to rescind the contract if, despite having previously concluded corresponding procurement contracts, we are not supplied, are not supplied on time or are not supplied in full by one of our upstream suppliers and are therefore unable to deliver the Goods; our liability for intent and negligence shall remain unaffected.

We shall inform the Buyer without undue delay that we have not received the relevant supply and, if we intend to rescind the contract, shall exercise the right of rescission without undue delay. In the event of rescission, we shall reimburse the Buyer without undue delay for the corresponding consideration already received.

3.3

Performance of our delivery obligations shall further be conditional upon the timely and proper performance of the Buyer’s obligations. We reserve the defence of non-performance of the contract (Einrede des nicht erfüllten Vertrages).

3.4

If the Buyer is in default of acceptance or culpably breaches any other duty to cooperate, we shall be entitled to claim compensation for the loss incurred by us as a result, including any additional expenses. Further claims and rights shall remain reserved.

3.5

Where the conditions set out in Clause 3.3 are met, the risk of accidental loss or accidental deterioration of the Goods shall pass to the Buyer at the time when the Buyer enters into default of acceptance or default as debtor.

3.6

The occurrence of any default in delivery on our part shall be determined in accordance with statutory law. In all cases, however, a formal reminder by the Buyer shall be required.

3.7

The Buyer’s rights under Clause 6 of these Terms and Conditions of Sale and our statutory rights, particularly where the obligation to perform is excluded, for example due to the impossibility or unreasonableness of performance and/or subsequent performance, shall remain unaffected.

4. Prices and Terms of Payment

4.1

Unless otherwise agreed in a particular case, our prices current at the time of conclusion of the contract shall apply on a “Free Carrier” Ettlingen basis (FCA Incoterms® 2020), plus statutory value added tax.

4.2

Packaging material shall be invoiced separately and shall not be taken back.

4.3

Any deduction of an early-payment discount shall require a separate agreement.

4.4

The purchase price shall be due and payable within 30 days following invoicing and delivery or acceptance of the Goods.

However, we shall be entitled at any time, including within an ongoing business relationship, to make all or part of a delivery conditional upon advance payment. We shall declare any corresponding reservation no later than in the order confirmation.

Upon expiry of the foregoing payment period, the Buyer shall be in default. For the duration of the default, interest shall accrue on the purchase price at the statutory default interest rate applicable from time to time. We reserve the right to claim further loss caused by default. In relation to merchants, our entitlement to commercial interest from the due date pursuant to Section 353 of the German Commercial Code (Handelsgesetzbuch – HGB) shall remain unaffected.

4.5

The Buyer shall have rights of set-off or retention only to the extent that its claim has been finally adjudicated or is undisputed.

5. Liability for Defects

5.1

The primary basis of our liability for defects shall be the agreement made concerning the characteristics and the intended use of the Goods, including accessories and instructions.

The suitability of the pumps for use with various chemicals is set out in our chemical-resistance list. The information contained in that list has been compiled to the best of our knowledge and on the basis of the experience available to us.

Due to the wide variety of possible applications of the Goods, only a lack of suitability classified as “not resistant” shall constitute an agreed characteristic. Suitability classified as “resistant” or “conditionally resistant” cannot be warranted in general terms and depends on the specific use by the Buyer. Accordingly, no guarantee as to the characteristics of the Goods shall be assumed in this respect.

All product descriptions and manufacturer’s information that form part of the individual contract or were publicly made available by us, particularly in catalogues or on our website, at the time of conclusion of the contract shall also constitute agreements as to the characteristics of the Goods for these purposes.

To the extent that the characteristics of the Goods have not been agreed, whether a defect exists shall be determined in accordance with statutory law pursuant to Section 434(3) BGB. Public statements made by the manufacturer or on its behalf, particularly in advertising or on the label of the Goods, shall take precedence over statements made by other third parties.

5.2

The Buyer’s claims in respect of defects shall be conditional upon the Buyer having duly complied with its obligations to inspect the Goods and give notice of defects pursuant to Section 377 HGB.

5.3

Where the Goods are defective, we shall, at our option, be entitled to provide subsequent performance by remedying the defect or by delivering new Goods free of defects.

In the event of rectification of the defect or replacement delivery, we shall bear all expenses necessary for the purpose of subsequent performance, particularly transport, travel, labour and material costs, unless such expenses are increased because the Goods have been moved to a location other than the place of performance.

5.4

If subsequent performance fails, the Buyer shall, at its option, be entitled to rescind the contract or reduce the purchase price.

6. Liability

6.1

Unless otherwise provided in the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with statutory law.

6.2

Irrespective of the legal basis, we shall be liable in damages under fault-based liability in cases of intent and gross negligence.

In cases of ordinary negligence and subject to statutory limitations of liability, such as the standard of care applied to one’s own affairs or an immaterial breach of duty, we shall be liable only:

a) for loss arising from injury to life, limb or health;

b) for loss arising from the breach of a material contractual obligation, meaning an obligation the performance of which is essential for the proper performance of the contract and on compliance with which the contracting party regularly relies and may reasonably rely; in this case, however, our liability shall be limited to compensation for foreseeable loss of the type typically arising under the contract.

6.3

The limitations of liability arising from Clause 6.2 shall also apply in relation to third parties and in the event of breaches of duty by persons whose fault is attributable to us under statutory law, including for the benefit of such persons.

They shall not apply to the extent that a defect has been fraudulently concealed or a guarantee concerning the characteristics of the Goods has been assumed, or to claims of the Buyer under the German Product Liability Act (Produkthaftungsgesetz).

6.4

In the event of a breach of duty that does not consist of a defect, the Buyer may rescind or terminate the contract only if we are responsible for the breach of duty.

Any right of the Buyer to terminate the contract at will, particularly pursuant to Sections 650 and 648 BGB, shall be excluded. In all other respects, the statutory requirements and legal consequences shall apply.

7. Retention of Title

7.1

We shall retain title to the Goods until all payments under the supply contract have been received.

In the event of conduct by the Buyer in breach of contract, particularly default in payment, we shall be entitled to demand the surrender of the Goods. Our demand for surrender of the Goods shall constitute rescission of the contract.

Following the return of the Goods, we shall be entitled to realise them. The proceeds of realisation, less reasonable realisation costs, shall be credited against the Buyer’s liabilities.

7.2

The Buyer shall be required to treat the Goods with due care. In particular, the Buyer shall be required, at its own expense, to insure the Goods adequately at their full replacement value against fire, water and theft damage.

Where maintenance and inspection work is required, the Buyer shall carry out such work in due time and at its own expense.

7.3

Before the secured claims have been paid in full, Goods subject to retention of title may neither be pledged to third parties nor transferred by way of security.

The Buyer shall notify us without undue delay in writing if an application for the opening of insolvency proceedings is filed or if third parties take measures against Goods owned by us, such as attachment.

If the third party is unable to reimburse us for the costs of an action pursuant to Section 771 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO), the Buyer shall be liable for the resulting shortfall incurred by us.

7.4

Until revocation in accordance with paragraph (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 at full value to products created by processing, mixing or combining our Goods, and we shall be deemed to be the manufacturer.

Where third-party ownership rights continue to exist following the processing, mixing or combining of our Goods with third-party goods, we shall acquire co-ownership in proportion to the respective invoice values of the processed, mixed or combined goods.

In all other respects, the same provisions as apply to Goods delivered subject to retention of title shall apply to the resulting product.

(b)

The Buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the Goods or the resulting product, either in full or in the amount of any co-ownership share held by us pursuant to the preceding paragraph. We accept the assignment.

The Buyer’s obligations referred to in Clause 7.3 shall also apply with respect to the assigned claims.

(c)

The Buyer shall remain authorised, alongside us, to collect the assigned claims.

We undertake not to collect the claims for as long as the Buyer meets its payment obligations towards us, there is no impairment of its ability to perform and we do not enforce the retention of title by exercising a right pursuant to paragraph 3.

If this is the case, however, we may require the Buyer to disclose to us the assigned claims and the respective debtors, provide all information required for collection, hand over the corresponding documents and notify the debtors and other third parties of the assignment.

In addition, in such a case we shall be entitled to revoke the Buyer’s authority to continue reselling and processing the Goods subject to retention of title.

(d)

If the realisable value of the security exceeds our claims by more than 10%, we shall, at the Buyer’s request, release security of our choice.

8. Limitation Periods

8.1

By way of derogation from Section 438(1) no. 3 BGB, the general limitation period for claims arising from material defects and defects in title shall be one year from delivery.

Where acceptance has been agreed, the limitation period shall commence upon acceptance.

8.2

Statutory special provisions concerning limitation periods, particularly Section 438(1) nos. 1 and 2, Section 438(3), and Sections 444 and 445b BGB, shall remain unaffected.

8.3

The foregoing limitation periods under the law of sale shall also apply to contractual and non-contractual claims for damages of the Buyer that are based on a defect in the Goods, unless the application of the standard statutory limitation period pursuant to Sections 195 and 199 BGB would result in a shorter limitation period in the individual case.

Claims for damages of the Buyer pursuant to Clause 6.2 sentence 1 and sentence 2(a), as well as claims under the German 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 shall also be entitled to bring proceedings against the Buyer before the courts at the Buyer’s place of business.

Overriding statutory provisions, particularly those concerning exclusive jurisdiction, shall remain unaffected.

9.2

The laws of the Federal Republic of Germany shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.

9.3

Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.