Terms & Conditions

General Terms of Sale, Delivery and Payment

I. Scope of Application

1. These General Terms of Sale, Delivery and Payment (“GTC”) apply exclusively to all deliveries, services and offers of Schmitt Stahlbau GmbH (“Seller”) to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal persons under public law and special funds under public law (together, “Customer”). These GTC do not apply to consumers within the meaning of Section 13 BGB.
2. These GTC apply to all present and future business relationships with the Customer, even if they are not expressly agreed again.
3. Any conflicting, deviating or supplementary general terms and conditions of the Customer shall not become part of the contract unless the Seller expressly agrees to their applicability in text form. This also applies if the Seller, despite being aware of such terms, performs the delivery or service without reservation.
4. Individual agreements made with the Customer shall take precedence over these GTC. Subject to proof to the contrary, the content of such individual agreements shall be determined by the relevant contract or by the Seller’s confirmation in text form.
5. The version of these GTC valid at the time the contract is concluded shall apply.

II. Offers and Conclusion of Contract

1. Offers made by the Seller are non-binding and subject to change unless they are expressly designated as binding. Unless expressly stated otherwise in the offer, prices and other terms remain subject to change until the contract is concluded.
2. An order placed by the Customer constitutes a binding offer to conclude a contract. The contract is concluded when the Seller confirms the order in text form or begins performance of the delivery or service.
3. Oral statements, assurances, side agreements or other information provided by the Seller’s employees shall only be binding if confirmed by the Seller in text form or if based on an individual agreement.
4. Technical documents, illustrations, drawings and information concerning dimensions, weight and performance in offers, catalogues or other documents are approximate values customary in the industry unless expressly designated as binding. The Seller retains ownership, copyright and all other protective rights in all documents. Such documents may not be reproduced or made available to third parties without the Seller’s prior consent.
5. In the case of sales by weight, the weight determined on the Seller’s scales shall be decisive unless the Customer, at its own expense, arranges for immediate verification by an officially recognised weighing station and notifies any deviation in text form no later than 5 working days after delivery.
6. The Seller reserves the right to reject orders in individual cases without stating reasons.

III. Prices

1. The prices stated in the Seller’s order confirmation shall apply. In the absence of an order confirmation, the prices stated in the Seller’s offer shall apply. Unless otherwise expressly agreed, all prices are ex works Gelsenkirchen, EXW (Incoterms 2020), plus applicable statutory value added tax. Costs for packaging, freight, insurance, customs duties, fees and other ancillary costs shall be borne by the Customer unless expressly agreed otherwise.
2. For orders with an agreed delivery or performance period of more than 4 months from conclusion of the contract, the Seller shall be entitled to adjust the price if, after conclusion of the contract, the costs of raw materials, in particular steel, energy, wages, ancillary wage costs, freight or other cost factors material to performance demonstrably change and not merely insignificantly. Cost reductions shall be taken into account in the same way as cost increases. If the price increase exceeds 10% of the originally agreed net price, the Customer may withdraw from the part of the contract not yet fulfilled within 14 days after receipt of the notification in text form.
3. Cash discounts, rebates or other price reductions apply only if expressly agreed in text form.

IV. Delivery Periods and Delivery Conditions

1. Delivery periods and delivery dates are binding only if the Seller has expressly confirmed them as binding in text form. Otherwise, stated delivery periods and delivery dates are non-binding estimates.
2. Delivery periods shall begin no earlier than conclusion of the contract, but not before all commercial and technical details of the order have been fully clarified, any agreed down payment has been received, and all documents, permits, approvals and other acts of cooperation to be provided or procured by the Customer have been provided in due time.
3. Partial deliveries are permitted to a reasonable extent, provided they are reasonable for the Customer when taking into account the Customer’s legitimate interests.
4. If the Seller is prevented from performing on time due to force majeure or other circumstances that were unforeseeable at the time of conclusion of the contract and are not attributable to the Seller, delivery periods and delivery dates shall be extended by the duration of the impediment plus a reasonable restart period. This applies in particular in the event of operational disruptions, labour disputes, official measures, natural events, pandemics, significant transport disruptions, shortages of energy or raw materials, and late or incorrect supply by upstream suppliers, provided the Seller has entered into a corresponding covering transaction. The Seller shall inform the Customer without undue delay of the start and expected duration of the impediment. If the impediment is expected to last longer than 3 months, the Seller may withdraw from the contract in whole or in part.
5. If the Seller is in default with a delivery that is bindingly owed, the Customer must first grant the Seller a reasonable grace period of at least 4 weeks in text form. If this grace period expires without result, the Customer may withdraw from the part of the contract not yet fulfilled. Any claims for damages by the Customer shall be governed exclusively by Section IX.
6. If the Customer fails to call off agreed partial quantities or call-off orders within the agreed periods, the Seller may, after prior warning and expiry of a 2-week grace period without result, store and invoice the goods at the Customer’s expense and risk or otherwise dispose of them in accordance with statutory provisions. Any additional costs incurred shall be borne by the Customer.

V. Shipment, Transfer of Risk and Acceptance

1. Unless expressly agreed otherwise, delivery shall be made ex works Gelsenkirchen, EXW (Incoterms 2020). The risk of accidental loss and accidental deterioration passes to the Customer when the goods are made available for collection at the works.
2. If collection, dispatch or delivery is delayed for reasons attributable to the Customer, risk shall pass to the Customer upon receipt of the notification that the goods are ready for dispatch or collection.
3. If the Seller, by way of exception, organises dispatch, packaging, means of transport, dispatch route and any transport insurance shall be selected by the Seller at its reasonable discretion, unless the Customer has issued deviating instructions. The resulting costs shall be borne by the Customer unless expressly agreed otherwise.
4. To the extent risk has already passed to the Customer, the Customer must report recognisable transport damage to the carrier without undue delay and arrange for the necessary determinations. Any claims of the Customer against the Seller due to defects or other breaches of duty remain unaffected.
5. If the Customer is in default of acceptance or refuses acceptance without justified reason, the Seller may store the goods at the Customer’s expense and risk. The Seller may charge reasonable storage costs from the time readiness for dispatch or collection has been notified. Further statutory rights remain unaffected.

VI. Terms of Payment

1. Payments are due in accordance with the payment terms stated in the order confirmation or invoice. Unless otherwise agreed, invoices are payable within 14 days of the invoice date without deduction.
2. Payments shall be made exclusively to the Seller’s bank accounts stated in the invoice.
3. Cash discounts, rebates or other deductions are permissible only if expressly agreed in text form.
4. Bills of exchange and cheques shall be accepted only on account of performance and at the Seller’s sole discretion. All associated costs shall be borne by the Customer.
5. The Customer may set off claims only if its counterclaims have been finally and legally established, are undisputed or have been acknowledged by the Seller, or if they arise from the same contractual relationship and are in a reciprocal relationship with the Seller’s main claim. The Customer may exercise a right of retention only under the same conditions.
6. For initial orders, for customers not sufficiently known to the Seller, or for orders with an order value exceeding EUR 50,000.00, the Seller may require advance payment, reasonable instalment payments or the provision of security.

VII. Default of Payment

1. If the Customer is in default of payment, default interest shall be owed at a rate of 9 percentage points above the applicable base interest rate pursuant to Section 288(2) BGB. The Seller reserves the right to claim further damage caused by default.
2. In the event of default of payment, the Seller may claim the statutory default lump sum of EUR 40.00 pursuant to Section 288(5) BGB. The Seller reserves the right to claim further damage caused by default, in particular necessary costs of legal enforcement, collection, lawyers’ fees and court fees. The default lump sum shall be set off against damages owed to the extent such damages are based on costs of legal enforcement.
3. If the Customer is in default of payment, all claims of the Seller arising from the ongoing business relationship shall become immediately due unless mandatory statutory provisions prevent this. In this case, the Seller may also make further deliveries or services conditional upon advance payment or the provision of security.
4. If the Customer’s financial circumstances substantially deteriorate after conclusion of the contract, or if a substantial risk to the Seller’s payment claim becomes apparent after conclusion of the contract, in particular in the event of an application for insolvency proceedings, cessation of payments or impending insolvency, the Seller may, pursuant to Section 321 BGB, refuse performance and, after unsuccessful expiry of a deadline set for concurrent performance or provision of security, withdraw from the contract.

VIII. Liability for Defects and Warranty

1. With regard to the commercial duty to inspect and notify defects, Section 377 of the German Commercial Code (HGB) applies with the following proviso: obvious defects as well as deviations in quantity, number of pieces and weight must be notified in text form without undue delay and no later than 7 working days after receipt of the goods. Hidden defects must be notified in text form without undue delay and no later than 7 working days after discovery. Timely dispatch of the notification is sufficient to meet the deadline.
2. The defect notification must describe the nature and extent of the defect with sufficient specificity to allow the Seller to verify it. Upon request, the Customer shall without undue delay give the Seller the opportunity to inspect the goods complained of.
3. In the case of justified defects notified in due time, the Seller shall, at its option, provide supplementary performance by repair or replacement delivery. The Seller shall be granted a reasonable period for this purpose. If supplementary performance finally fails, is refused or is unreasonable for the Customer, the Customer shall be entitled to the statutory rights in respect of defects. Claims for damages shall, however, exist only within the limits of Section IX.
4. The limitation period for claims based on material defects or defects of title is 12 months from the passing of risk. This does not apply:
   1. claims for damages arising from injury to life, body or health;
   2. intent or gross negligence by the Seller, its legal representatives or vicarious agents;
   3. fraudulent concealment of a defect;
   4. the assumption of a quality or durability guarantee;
   5. claims under the German Product Liability Act (Produkthaftungsgesetz);
   6. a building or an item that has been used for a building in accordance with its customary use and has caused the defectiveness of that building;
   7. claims arising from supplier recourse pursuant to Sections 445a and 445b BGB.
5. No warranty applies in particular to defects resulting from improper handling, storage, installation, processing or use of the goods by the Customer or third parties, from natural wear and tear, or from modifications made by the Customer.

IX. Liability

1. The Seller shall be liable without limitation in accordance with statutory provisions:
   1. for damages arising from injury to life, body or health;
   2. for damages based on intent or gross negligence by the Seller, its legal representatives or vicarious agents;
   3. in the event of fraudulent concealment of a defect;
   4. in the event of the assumption of a quality or durability guarantee;
   5. under the German Product Liability Act.
2. In the event of a slightly negligent breach of essential contractual obligations, the Seller shall be liable only for damage that is typical for the contract and foreseeable at the time the contract is concluded. Essential contractual obligations are obligations whose fulfilment is necessary for the proper performance of the contract and on whose compliance the Customer may regularly rely.
3. In all other cases, the Seller’s liability for simple negligence is excluded.
4. The foregoing limitations of liability also apply in favour of the Seller’s legal representatives, employees and vicarious agents.
5. The foregoing provisions do not reverse the statutory burden of proof.

X. Retention of Title

1. The Seller retains title to all delivered goods until all present and future claims arising from the business relationship with the Customer have been paid in full.
2. The Customer shall handle the goods subject to retention of title with due care and insure them adequately at its own expense against customary risks, in particular fire, water and theft. The Customer hereby assigns to the Seller, by way of security, any claims against the insurer; the Seller accepts this assignment.
3. Any processing, mixing, combining or transformation of goods subject to retention of title shall be carried out for the Seller as manufacturer, without creating any obligation on the Seller’s part. If the goods subject to retention of title are processed, combined or mixed with other items, the Seller 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 value of the other items processed at the time of processing.
4. The Customer may resell goods subject to retention of title in the ordinary course of business, provided it duly fulfils its payment obligations towards the Seller. The Customer hereby assigns to the Seller, in full and by way of security, all claims arising from the resale; the Seller accepts this assignment. The Customer remains authorised to collect these claims until this authorisation is revoked.
5. The Seller shall not exercise its collection right as long as the Customer duly fulfils its payment obligations, is not in default of payment and no application for the opening of insolvency proceedings has been filed.
6. Pledges, transfers by way of security or other dispositions of goods subject to retention of title outside the ordinary course of business are not permitted. The Customer shall notify the Seller without undue delay in text form of any third-party access to goods subject to retention of title or assigned claims and shall support the Seller, at the Customer’s own expense, in safeguarding the Seller’s rights to the extent necessary and reasonable.
7. In the event of a breach of contract by the Customer, in particular default of payment, the Seller may, in accordance with statutory provisions, demand surrender of the goods subject to retention of title and, after withdrawal from the contract, realise them.
8. If the realisable value of the securities exceeds the secured claims by more than 10%, the Seller shall, at the Customer’s request, release securities at the Seller’s choice.

XI. Cancellation and Lump-Sum Damages

1. If the Customer definitively and unjustifiably refuses acceptance or cancels an order without being entitled to do so, the Seller may claim lump-sum damages. These shall amount to 10% of the net value of the affected delivery for standard or stock goods, and 15% of the net value of the affected delivery for goods already scheduled, cut to size or processed. The Seller reserves the right to prove higher damages. The Customer reserves the right to prove that no damage or substantially lower damage has been incurred.
2. In the case of special manufactures, project-specific constructions or products already in production, the Seller may, instead of the lump sum under paragraph 1, claim the material, external service, design and production costs actually incurred up to the time of cancellation, plus a reasonable surcharge for overheads and lost profit, to the extent this amount exceeds the lump sum.
3. In the case of contracts for work and materials concerning non-fungible items within the meaning of Section 650 sentence 3 BGB, the Customer has the statutory right of termination pursuant to Section 648 BGB. In the event of such termination, the amounts specified in paragraphs 1 and 2 constitute a specification of the Seller’s remuneration claim pursuant to Section 648 sentence 2 BGB, less saved expenses. The Seller shall credit 5% of the remuneration not yet earned as saved expenses; the Customer reserves the right to prove that higher expenses have been saved.

XII. Confidentiality

1. The Customer undertakes to treat as strictly confidential all technical, commercial and other information that becomes known in connection with the business relationship, in particular prices, drawings, design documents, offers, manufacturing processes and other know-how. The Customer shall not disclose such information to third parties and shall use it exclusively for the purposes of performing the contract, unless the information is in the public domain or has been lawfully obtained from third parties.
2. The confidentiality obligation continues to apply after termination of the respective business relationship.

XIII. Data Protection

1. The Seller processes personal data in compliance with applicable data protection provisions. Further information can be found in the Seller’s privacy policy, as amended from time to time.

XIV. Place of Performance, Place of Jurisdiction and Applicable Law

1. The place of performance for all deliveries, services and payments is Gelsenkirchen.
2. If the Customer is a merchant, a legal person under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is Gelsenkirchen. However, the Seller may also sue the Customer at the Customer’s general place of jurisdiction.
3. The law of the Federal Republic of Germany applies exclusively, excluding conflict-of-laws rules and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

XV. Final Provisions

1. If individual provisions of these GTC are or become invalid, impracticable or unenforceable in whole or in part, the validity of the remaining provisions remains unaffected. The invalid, impracticable or unenforceable provision shall be replaced by the statutory provision.
2. Amendments and supplements to contracts concluded on the basis of these GTC should be made in text form for clarification purposes. Prior individual agreements and subsequent individual arrangements between the parties remain unaffected.
3. Section headings are for readability only and have no independent legal significance.