General Conditions of Sale of Ronald Schmitt Design GmbH, Eberbach
§ 1 General Provisions – Scope
1. The present sales conditions shall be valid to the exclusion of any conditions of the customer. They will remain valid even if – with knowledge of the customer’s contradictory conditions or conditions deviating from the present sales conditions – we carry out the delivery to the customer without reservations.
2. Any amendments and modifications of the present conditions shall be effective only if they are confirmed in writing.
§ 2 Offer – Offer Documents
We retain possession of and proprietary rights for illustrations, drawings, sales documents, patterns, etc. None of these may be passed on to third parties without our previous written and explicit consent.
§ 3 Order Processing – Prices – Terms of Payment
1. Our prices do not include the VAT legally required in each instance. The VAT will be itemised in the invoice according to the rates applicable on the date on which the invoice is made out.
2. If a date has been agreed for taking delivery of the goods, and the customer requests the delivery after that date, he undertakes to accept lump-sum
3. Any deduction of discount needs a special written agreement.
4. Any offsetting by the customer shall be possible only with legally non-appealable or undisputed cross-claims. The customer shall be entitled to exercise a right of retention only if his cross-claim is based on the same contractual relationship.
5. In the event of arrears, all agreements on payment by instalments, including the acceptance of bills, will become null and void.
6. Delay in payment substantiates that all outstanding claims for payment immediately become due for payment.
7. A customer’s complaint entitles the customer to withhold an appropriate sum only. It does not generally release the customer from the obligation to pay.
§ 4 Delivery Period
1. In the event of delay in acceptance by the customer or the infringement of other obligations to cooperate, we shall be entitled to claim compensation.
2. An agreement for delivery at a fixed date shall be expressly stated. Otherwise we will make every effort to meet the stated delivery deadlines. However, the customer may derive rights from the failure to meet the delivery deadline only if he proves to us that his interest in the further fulfilment of the agreement has justifiably ceased.
3. If the delay in delivery was caused by a deliberate or grossly negligent infringement of the contract on our part, this entitles the customer to compensation. Our liability for damage compensation is however restricted to foreseeable and typical damage.
4. The same shall apply if the delay in delivery is caused by a culpable infringement of an important contractual obligation on our part.
5. If the delay in delivery is not based on the infringement of an important contractual obligation, the customer may demand lump-sum compensation for delay amounting to a maximum of 3 % of the delivery value for every completed week of delay, up to a maximum of not more than 15 % of the delivery value, unless we can prove that no damage or only minimal damage was caused
§ 5 Transfer of Risk – Packaging Costs
1. Packaging for transport and other packaging according to the packaging regulations will be taken back. Exceptions to this provision are pallets and marked re-usable packaging, which remain our property. The customer shall store them correctly and free of charge until they are collected.
2. We shall choose the forwarding route and the manner of forwarding according to the principles of the conscientious tradesman. Principally, goods will be delivered to the customer’s business address. Other addresses for unloading have to be expressly agreed.
3. The risk of delivery on forwarding by our vehicle or by our contractual forwarder is transferred to the customer when the goods leave our works. If the goods are collected by vehicles or contractual forwarders of the customer, the risk is transferred when the goods are handed over to the customer and/or his contractual forwarder.
4. Risk shall be transferred at the moment of leaving our works even in the case of freight-free delivery.
5. Up to the limit of value applicable in each case, the costs of forwarding will be borne by the customer. The transport of the goods is insured. The insurance premium will be charged to the customer. If the customer does not pay the transport insurance, there will be no claim for replacement free of charge.
§ 6 Warranty of Quality
1. Any defect has to be notified without delay in writing.
2. If the customer has made a claim based on our liability for proper quality and good title, and it finally turns out that there does not exist any defect or the defect notified is due to facts and circumstances which are not covered by warranty, the customer shall compensate us for the costs incurred, if he overlooked this due to gross negligence and if he is responsible for the enforcement of warranty.
§ 7 Liability
1. Further claims by the customer are excluded unless it is proved that we, our representatives or our vicarious agents acted intentionally or with gross negligence. If we cannot be proved to have committed an intentional breach of contract, our liability to pay compensation for damages shall be confined to foreseeable and typical damage.
If the product was brought to another location than the place of delivery stated by us, the customer will have to pay the additional costs for transport, routes, labour and material transfer incurred through the difference of location.
2. Liability as a result of mandatory legal statutes, for example according to the Defective Products Liability Act, remains unaffected.
3. The customer is not entitled to offset any defects for which he wishes to enforce claims against any counter-claims, with the exception of those stated in § 3, par. 4, unless these claims have been recognised or unappealably legally established. . Nor is he entitled to refuse any payments for any other legal reasons.
§ Reservation of Proprietary Rights, Revocation
1. We retain ownership of the item of purchase until all payments resulting from the business relation have been made. In the event of behaviour contrary to the terms of the contract by the customer, in particular in the event of arrears of payment, we shall be entitled to take back the item of purchase. This shall also apply if an application for insolvency proceedings has been made or if such proceedings are instituted. It shall also apply if we can prove that the customer has become unable to pay.
2. The taking back of the item of purchase by us does not constitute a withdrawal from the contract unless this is expressly and mandatorily provided for or we have expressly made written provision to this effect. The attachment of the item of purchase by us shall always constitute a revocation of the contract.
3. After we have repossessed the item of purchase, we shall be entitled to realise such objects. The proceeds on sale will be offset against the customer’s liabilities – after deduction of appropriate realisation costs. We undertake to carry out the realisation with the care of a correct tradesman.
4. In the event of justified revocation of the contract, it is understood that the customer has to compensate the time of use and possession. This compensation will amount to the net purchase price divided by 365 and multiplied with the effective number of days of use and possession.
5. The customer undertakes to take good care of the item of purchase until it finally becomes his property. In particular he undertakes to adequately insure these items against fire, water and theft at new, original value.
6. The customer is entitled to resell the item of purchase in the normal course of business. However, as of now he assigns to us all claims to the amount of the final invoice sum of our existing claims (including value added tax) which he acquires as a result of resale to his purchasers or to third parties. This provision shall apply regardless of whether this item of purchase is resold without processing or after processing.
7. The customer shall be authorised to collect the assigned claims as long as he meets his obligations towards us. If this is no longer the case, if he becomes incapable of payment or if an application is even made to institute insolvency proceedings against the customer’s property, we shall have the right to demand that the customer informs us of the assigned claims and their debtors, provides all details necessary for their collection, presents the relevant documents and informs the debtors (third parties) of the assignment. We are then ourselves entitled to disclose the assignment.
8. The processing or transformation of the item of purchase by the customer is always carried out on our behalf. If the item of purchase is processed with other objects not belonging to us, we acquire a share in the new item corresponding to the value of the item of purchase (final invoice sum including value added tax)/value of other processed objects ratio at the time of purchase. Moreover, the same shall apply to the item created as a result of processing as to the item of purchase delivered under reservation.
9. The same shall apply if the item of purchase is inseparably combined with other objects not belonging to us.
10. For the securing of our claims, the customer also assigns to us those claims towards a third party arising from the combination of the item of purchase with a piece of land.
11. We undertake to release the securities to which we are entitled at the customer’s request if the realisable value of our securities exceeds the claims to be secured by more than 10 %. The choice of the securities to be released will rest with us.
§ 9 Place of Jurisdiction – Place of Performance – Choice of Law – Other Provisions
1. If the customer is a tradesman, the place of jurisdiction will be Heidelberg. However, we are also entitled to take legal action against the customer at his place of business. Regardless of the amount involved in the dispute, we are entitled to invoke the aid of the county or district court as court of first instance.
2. Unless otherwise stated in the confirmation of the order, our place of business is the place of performance.
3. If one or more provisions or the present agreement should be or should become invalid, this shall not affect the validity of the other provisions. If a provision becomes invalid, the contracting parties undertake to agree on provisions which come closest to the economic meaning of the invalid provisions.
4. For the entire contractual relationship German law shall apply, apart from the International Purchase Law.
If you are a consumer, you have a right of withdrawal in addition to our other terms and conditions.
A consumer is any private person who enters into a legal transaction for non-commercial purposes.
Right of revocation
You have the right to cancel the contract without giving any reason. The revocation period is fourteen days from the date of the agreement.
To exercise your right of withdrawal, you must contact us using an unequivocal statement (e.g. a letter sent by post, fax or e-mail) about your decision to withdraw from this contract. (Ronald Schmitt Design GmbH, Gretengrund 3, 69412 Eberbach, Phone: 06271 949-100, Fax: 06271 949-199, E-Mail: email@example.com). You can use the sample form (click here to download), but it is not required.
To comply with the withdrawal period, it is sufficient that you send notice of the exercise of the revocation before the end of the 14-day period.
Consequences of the cancellation
If you withdraw from the contract, all payments received from you will be repaid immediately (no later than 14 days) from the date we received notiification of revocation This will include delivery charges except for any additional costs arising from your choosing a different delivery method other than the most favourable standard delivery offered by us. For the repayment, we will use the same method of payment as you used in the original transaction unless expressly agreed otherwise with you. In no case will you be charged for repayment fees.
If you have requested that the production or services be commenced immediately (during the period of cancellation), you must pay Ronald Schmitt Design GmbH an amount equal to the proportion of works already carried out up to the time you inform us of the right of withdrawal. The value calculated will be in respect to the total value of services provided for in the contract.
End of revocation
§10 dispute resolution
The European Commission provides an online dispute resolution platform, available at https://ec.europa.eu/consumers/odr/.
We are not obliged to participate in a dispute settlement procedure before a consumer arbitration board.
§ 11 Jurisdiction – Place of performance – Choice of law – Miscellaneous
1. If the customer is a merchant, the place of jurisdiction is Heidelberg. However, we are entitled to take action at the customer’s place of business. Regardless of the amount or the value in dispute, we are permitted to call the local or regional court as a court of the first instance.
2. Unless otherwise stated in the order confirmation, our place of business is Ronald Schmitt Design GmbH, Gretengrund 3, 69412 Eberbach, Phone: 06271 949-100, Fax: 06271 949-199, E-Mail: firstname.lastname@example.org.
3. Should one or more provisions of this agreement be or become ineffective, this shall not affect the validity of the remaining provisions. In the event of ineffectiveness, the contracting parties undertake to accept effective regulations that most closely correspond to the economic purpose of the invalid provisions.
4. German law applies to the entire contractual relationship except where international sales law takes precedence.