General terms and conditions of business (B2B) and customer information
Last updated: 10 February 2012
§ 1 Incorporation of general terms and conditions of business
§ 2 Contract conclusion
§ 3 Catalogue information
§ 4 Availability clause
§ 5 Terms and conditions of delivery and payment
§ 6 Default (in payment)
§ 7 Place of performance and transfer of risk
§ 8 Obligation to examine goods and notify of defects, liability for defects
§ 9 Reservation of title
§ 10 Liability
§ 11 Choice of law
§ 12 Written form
§ 13 Limitation
§ 14 Place of jurisdiction
§ 1 Incorporation of general terms and conditions of business
1.1 The general terms and conditions of business used here in their current applicable version at the time of contract conclusion shall apply exclusively in the contractual relationship between SCHMECK VERBINDUNGSTECHNIK GmbH (hereafter the seller) and the customer (entrepreneur).
1.2 Any incorporation of existing general terms and conditions of business of the customer outside of this agreement is expressly excluded. There will also be no such incorporation where SCHMECK VERBINDUNGSTECHNIK GmbH remains silent on or does not expressly contradict a declared incorporation of such terms and conditions, for example through notices on business documentation, delivery slips or similar.
1.3 There is also no agreement provided to any incorporation of the customer's general terms and conditions of business where the agreed performance is provided or accepted without reservation or the agreed consideration is paid.
§ 2 Contract conclusion
The goods and services offered by SCHMECK VERBINDUNGSTECHNIK are directed exclusively at entrepreneurs within the meaning of section 14 of the German Civil Code (BGB).
The contract between the seller and the customer is formed through acceptance of the corresponding offer in accordance with the subsequent provisions.
The services presented by SCHMECK VERBINDUNGSTECHNIK GmbH as part of the seller's internet catalogue or brochures represent an invitation to the customer from SCHMECK VERBINDUNGSTECHNIK GmbH to submit an offer to conclude a purchase agreement. The seller's product representations and price lists are all non-binding unless they become part of a contractual agreement. The text of the contract in the online offer with information on the item will be saved by the seller. The customer has no access to the text of the contract via the internet. Customers may amend their entries at any time before the order is submitted. We will provide information on amendment options throughout the order process.
The customer's order (via letter, fax, email or online order form) is the offer made to SCHMECK VERBINDUNGSTECHNIK GmbH to conclude a purchase agreement under the terms and conditions stated in the order. In the case of an online order, the customer submits a legally binding offer to enter into a contract in relation to the goods located in the basket after entering their personal data and through clicking the order button at the end of the order process.
Orders that have been transmitted to the seller electronically shall only be deemed to have been received once they have been accessed and opened by us.
The order receipt confirmation addressed to the customer by SCHMECK VERBINDUNGSTECHNIK GmbH does not constitute an acceptance of the order.
The contract is formed through the express declaration of acceptance (order confirmation) by SCHMECK VERBINDUNGSTECHNIK GmbH or, in default of this, through delivery of the item to the delivery address stated by the customer in the order. The seller is entitled to refuse to accept the order.
The customer must ensure that the email address provided by it is correct in order that the emails sent to this address are also capable of being received. Furthermore, the customer must ensure that any potential SPAM filters are managed in such a way that all emails sent from the seller or from third parties appointed by the seller to process the order can be delivered.
In the event that the customer is unable financially to meet their obligations to the seller, the seller may terminate any existing exchange agreements with the customer by withdrawing or by terminating without notice in the case of ongoing debt obligations. This shall also apply in the event of an insolvency application on the part of the customer. Section 321 BGB and section 112 of the German Insolvency Code (InsO) remain unaffected. The customer is under an obligation to inform the seller immediately and in writing of any imminent inability to pay.
Where the parties have agreed special terms and conditions then these shall not in principle apply to any concurrent or future contractual relations.
§ 3 Catalogue information
3.1 Price information in the catalogue is understood in each case as net plus the relevant applicable statutory VAT. Shipping and packaging costs, loading, insurance (in particular transport insurance), customs and duties will be charged separately.
3.2 In the event that an incorrect price is displayed for the goods in the online catalogue, then SCHMECK VERBINDUNGSTECHNIK GmbH shall be entitled to withdraw from the contract, irrespective of any potential existing statutory right of rescission.
§ 4 Availability clause
4.1 The delivery dates and times stated are non-binding and relate to working days from Monday to Friday. Compliance with the delivery times by us is conditional upon the fact that all documentation that must be submitted by the purchaser for the order is present, any technical queries have been clarified and the purchaser meets their contractual obligations, in particular the payment obligations from all business transacted with the seller.
4.2 In the event that performance is delayed, the customer shall only have a right of withdrawal within the framework of the statutory provisions if the seller is responsible for the delay. The customer may confirm the order with the amended delivery times or may withdraw from the contract. The same applies where it subsequently transpires that an item offered in the online catalogue is unavailable.
4.3 For force majeure events that impact fulfilment of the contract, the seller is entitled to postpone the delivery for the duration of the hindrance and to withdraw from the contract in whole or in part in the case of longer-term delays without any claims being established against the seller through this. A force majeure event is any event unforeseeable for the seller or an event that, even if it had been foreseeable, is outside of the seller's area of influence, and the impact of which on the fulfilment of the contract cannot be prevented through reasonable efforts on the part of the seller. Any potential statutory claims of the customer remain unaffected by this.
§ 5 Terms and conditions of delivery and payment
5.1 The goods will be delivered in the packaging units stated. The right to make technical changes and changes to the form, colour and unit of weight remains reserved where reasonable and within standard commercial limits. The seller reserves the right to execute deliveries of up to 10% above or below the quantity ordered.
5.2 SCHMECK VERBINDUNGSTECHNIK GmbH will deliver to purchasers within Germany and the EU. The prices stated by the seller shall be understood as net prices plus statutory German VAT. Packaging and shipping costs, loading, insurance (in particular transport insurance), customs and duties will be charged separately. Transport insurance will only be taken out at the express wish of the customer and on the customer's account.
5.3 Unless otherwise agreed, the seller offers the following payment options:
- Advance payment via bank transfer
5.4 Delivery on account is conditional upon the fact that SCHMECK VERBINDUNGSTECHNIK GmbH is convinced that the purchaser actually exists and that there has been a credit check with positive results. For this, SCHMECK VERBINDUNGSTECHNIK GmbH is entitled to call upon credit agencies, e.g. Creditreform or Schufa.
5.5 SCHMECK VERBINDUNGSTECHNIK GmbH reserves the right to execute deliveries only upon advance payment, irrespective of the customer's choice.
5.6 Only payments made via bank transfer are accepted for deliveries with advance payment
5.7 The freight costs incurred in shipping the goods vary depending on the quantity of the goods to be shipped. The freight forwarder will be selected using reasonable discretion.
5.8 If different levels need to be negotiated between the unloading point and the delivery location, the seller reserves the right to charge a flat rate as a premium for the different levels where the total weight exceeds 100 kg.
5.9 Orders that are received by 11:00 will generally be shipped the same day subject to availability. Delivery periods may be longer in individual cases as a result of factors that are not or not adequately under the control of SCHMECK VERBINDUNGSTECHNIK GmbH or the supplier (for example weather conditions). In the event that delivery is delayed unreasonably in such a case, the customer will be informed of this.
5.10 The seller is entitled to make partial deliveries for processing-related reasons if these are reasonable for the customer. In this event, the seller is also entitled to issue corresponding partial invoices.
5.11 The delivery slip will be enclosed with the goods. Invoices will be issued separately by fax, post or electronically.
5.12 Call-off orders must be been delivered and paid in full 12 months after the order date. If a more favourable volume price has been agreed on account of the call-off quantity, the seller shall be entitled to adjust the prices in accordance with the quantity scale if the purchaser does not take the overall quantity for reasons attributable to the purchaser.
Once a call-off order period has expired, after setting a grace period in writing for the purchaser, the seller shall also be entitled to withdraw from the contract in relation to the quantities not yet taken and to claim compensation where the statutory condition for this are present.
§ 6 Default (in payment)
6.1 A payment is deemed to have been received once the consideration is credited to one of Schmeck Verbindungstechnik GmbH's accounts. In the event of default the seller shall be entitled to demand default interest of 10% above the base rate of the European Central Bank.
6.2 All other statutory rights of the seller remain unaffected.
6.3 Where invoices are overdue, the payments received will be applied to any costs and interest first of all and then to the oldest existing claim.
§ 7 Place of performance and transfer of risk
7.1 The place of performance is the location of the shipping warehouse for the corresponding products.
7.2 The risk shall transfer to the purchaser once the purchased item has been handed over to the transport carrier at the place of performance. This shall also apply where carriage paid delivery has been agreed, as well as in the case of transfer orders.
The transfer is deemed to have taken place in the same way where the purchaser is in default of acceptance.
7.3 The seller is under no obligation to accept returned transportation or other packaging.
§ 8. Obligation to examine goods and notify of defects/liability for defects
8.1 The customer is under an obligation to check the goods, delivery slip and invoice immediately following receipt.
Any negligible defect will not give rise to claims for defects and will not entitle the customer to refuse to accept the items delivered.
Where objections are raised with a delivery, this will not entitle the customer to refuse further deliveries from the same or another contract.
8.2 The statutory regulations shall apply where there is a defect in the item purchased.
Notification of defects must be provided immediately in accordance with section 377 sub-section 1 of the German Commercial Code (HGB), otherwise the item delivered shall be deemed to have been accepted under section 377 sub-section 2 HGB. The limitation period for claims for defects is one year following the transfer of risk, unless the item involved has been used for a building in accordance with its usual manner of use. A supplementary delivery or subsequent improvement (supplementary performance) may only impact the limitation period for the defect triggering the supplementary performance.
8.3 Delayed claims will be at the customer's expense and they cannot be taken into account under the conditions of section 377 HGB, unless the relevant defect could not be detected during the examination.
8.4 Where a warranty applies SCHMECK VERBINDUNGSTECHNIK GmbH will, at its own discretion, repair or exchange the goods delivered for goods free from defects or will credit the customer for the defective goods with these being returned.
8.5 The customer may reduce the purchase price or withdraw from the contract where two attempts at repair by SCHMECK VERBINDUNGSTECHNIK GmbH have failed within a reasonable period in each case. Any further claims of the customer are excluded.
8.6 Where the goods delivered are different to the ones ordered or the quantities are incorrect, the customer shall be under an obligation to contact SCHMECK VERBINDUNGSTECHNIK GmbH directly via email at the following address: kontakt@schmeck-schrauben.de. SCHMECK VERBINDUNGSTECHNIK GmbH will arrange for the incorrect goods delivered to be collected and for the goods actually ordered to be delivered. No costs will be incurred by the customer beyond those for normal order processing as a result of the supplementary or replacement delivery.
8.7 No claims for defects will arise through natural wear and tear or through damage that arises following the transfer of risk as a result of defective or negligent handling, unsuitable equipment, excessive strain, incorrect storage or on account of particular external influences that are not provided under the contract, as well as faults that cannot be reproduced.
Standard references for the goods delivered: DIN EN 26 157-1, DIN EN ISO 898-1
The seller hereby expressly points out the problem that cannot be excluded of hydrogen-induced brittle fractures (hydrogen embrittlement) with electroplated items with a tensile strength of more than 1000 N/mm² (steel grades of 10.9 and above) or core and surface hardening of 320 HV and over, even where due diligence is exercised. To this extent, any damage caused by hydrogen-induced brittle fractures is not subject to the warranty and the seller is not liable for this, as long as the procedure under DIN EN ISO 4042 has been observed and the seller has not caused the defect in the goods intentionally or with gross negligence or the customer has claimed damage from injury to health, life and limb.
8.8 Customer payments may only be withheld to an extent proportionate to the material defect which has occurred and that have been determined in law. If the item is assigned free of charge, the seller shall only be liable where gross negligence or wilful intent can be held against it.
8.9 Any assignment of claims for defects of the customer is excluded in principle.
§ 9 Reservation of title
9.1 SCHMECK VERBINDUNGSTECHNIK GmbH shall retain the title in the goods delivered until the fulfilment of all claims to which SCHMECK VERBINDUNGSTECHNIK GmbH is entitled through the overall business relationship with the customer.
9.2 The customer is not entitled to mortgage the goods delivered by SCHMECK VERBINDUNGSTECHNIK GmbH, to pledge them as security or to grant security interests in them to third parties. If a third party nevertheless acquires rights in the secured item, then the customer hereby assigns all of its rights that arise through this to SCHMECK VERBINDUNGSTECHNIK GmbH. SCHMECK VERBINDUNGSTECHNIK GmbH accepts this assignment. The customer is under an obligation to inform the seller immediately in the event of attachment, seizure or any other disposal by a third party.
9.3 If the goods delivered are converted, then the seller shall be deemed to be the manufacturer and will acquire title to the newly-created goods. If the goods are converted together with other materials, the title shall be proportionate to the invoice value of the goods delivered. If joining or combining of the seller's goods with the customer's item is to be considered as the main item, joint ownership in the item shall pass to the seller in proportion to the invoice value of the goods delivered. In these cases, the customer shall be considered a custodian of the goods.
9.4 The customer is entitled to sell the items delivered owned by Schmeck Verbindungstechnik GmbH (goods subject to the reservation of title) in the ordinary course of business. The customer does, however, hereby assign all claims from this sale to the seller. The customer is under an obligation only to transfer the property to the relevant purchasers subject to payment.
9.5 Where an account is open with us, the securities shall secure the claim for the balance.
§ 10 Liability
Liability for default in delivery is governed conclusively in section 4.
In all other respects, Schmeck Verbindungstechnik GmbH shall be liable for compensation to the customer for any legal reason as follows:
Where Schmeck Verbindungstechnik GmbH has negligently breached an essential contractual obligation (a so-called cardinal obligation), the obligation to pay compensation shall be limited to foreseeable average damage that typically arises.
If the seller has negligently breached a non-essential contractual obligation, the obligation to pay compensation shall be limited to the order value.
The limitations of liability do not apply to cases of wilful intent and gross negligence, deceit, injury to life and health where the German Product Liability Act is applicable or to any warranty promises, unless provided otherwise in the latter case.
§ 11 Choice of law
The law of the Federal Republic of Germany applies in principle to the exclusion of the laws on the International Sale of Goods.
The languages of the contract are German and English.
§ 12 Written form
12.1 Agreements between the parties must be made in writing in order to be effective.
12.2 Oral agreements must be confirmed in writing by both parties in order to be effective.
12.3 Any amendment or abolition of the written requirements shall only be possible using the written form.
12.4 Submitting a statement via email shall suffice for the purposes of maintaining the written form requirement.
§ 13 Limitation
With the exception of the claims under section 8, claims of the customer shall expire in one year from notice, and no later than five years following the service provision.
§ 14 Place of jurisdiction
The seller's head office is the exclusive place of jurisdiction. Irrespective of the previous provision, SCHMECK VERBINDUNGSTECHNIK GmbH is entitled to bring proceedings at any general place of jurisdiction permitted by law.