CONDITIONS OF SALE

CONDITIONS OF SALE

Terms of sale, delivery and payment of Hermann Schmidt GmbH & Co. KG

1. Scope of application:

The following General Terms and Conditions of Sale, Delivery and Payment shall apply exclusively to all orders placed with us by entrepreneurs (cf. § 14 BGB). Deviating, conflicting or supplementary general terms and conditions of the customer shall not become part of the contract, even if we are aware of them, unless we have expressly agreed to their validity in writing. Any conflicting prohibition of assignment is hereby expressly rejected. We are entitled to assign the claims arising from our business relationship.

1. Conclusion of contract:
2. Our offers are subject to change. We expressly reserve the right to make technical changes and changes in shape, color and/or weight within reasonable limits.
3. By ordering goods, the customer makes a binding declaration that he wishes to purchase the ordered goods. We are entitled to accept the contractual offer contained in the order within two weeks of receipt. Acceptance can be declared either in writing, in text form (in particular by e-mail) or by delivery of the goods to the customer.
4. In the case of electronic orders, we are not obliged to confirm receipt immediately. If we nevertheless confirm such receipt, this confirmation alone does not constitute acceptance of the corresponding offer to conclude a contract. Rather, this requires a declaration on our part within the meaning of paragraph 2 above).

III Prices and terms of payment:

1. Our deliveries and services are subject to the agreed conditions. Unless otherwise agreed, our prices are net prices, i.e. excluding VAT and including packaging costs. Transportation costs within Germany shall be borne by us from a goods value of € 500 net, below the aforementioned Franco limit and/or outside Germany they shall be borne by the customer.
2. The purchase price is due for payment within 30 days of the invoice date, unless otherwise agreed. In the case of partial deliveries, corresponding partial payments are also due 30 days after delivery.
3. If the financial situation or solvency of the buyer deteriorates significantly after conclusion of the contract or if we become aware of a significant deterioration that occurred earlier or if the customer does not meet his payment obligations to us, in particular if a check or bill of exchange is not honored, we can demand advance payment or make the execution of the delivery dependent on the prior provision of security.
4. The customer shall only be entitled to withhold payments or offset them against counterclaims to the extent that his counterclaims are undisputed, legally established or recognized by us.

1. If the customer defaults on payment of more than one debt, the entire debt shall be due for payment. In the event of late payment, default interest of 9 percentage points above the respective base interest rate p.a. shall be charged. In the event of default of payment, we shall also be entitled to demand the difference in price of the delivery items resulting from an increase in price that has occurred in the meantime. This does not exclude the assertion of further damages.
2. The preceding sentences 1-3 of this paragraph apply accordingly to assignments of receivables to a factor.

1. Reservation of self-delivery/delivery deadlines:
2. Delivery deadlines shall only apply subject to the proviso that we ourselves have been supplied correctly and on time. We shall inform the customer immediately of the non-availability of the delivery item and, in the event of withdrawal, reimburse the customer immediately for the corresponding consideration.
3. The delivery period to be observed by us shall commence with the dispatch of the order confirmation/acceptance of offer, but not before any documents, approvals, releases to be provided by the customer have been provided and an agreed down payment has been received.
4. The delivery deadline shall be deemed to have been met if the goods have left the factory/warehouse or readiness for dispatch has been notified by the time it expires. Compliance with the delivery deadline requires the fulfillment of contractual obligations by the customer.
5. The delivery period shall be extended appropriately in the event of industrial disputes, in particular strikes and lockouts, as well as in the event of unforeseen events beyond our control, insofar as such obstacles demonstrably have a significant influence on the completion or delivery of the delivery item. This shall also apply if the circumstances occur at subcontractors. We shall also not be responsible for the aforementioned circumstances if they occur during an already existing delay. In important cases, we shall inform the customer as soon as possible of the beginning and end of such hindrances.

1. Place of performance/transfer of risk:
2. The place of performance – with the exception of the acrylic bathtub product group – is our warehouse in Essen. The place of performance for acrylic bathtubs is our warehouse in Schwalbach.
3. The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon handover or, in the case of sale by dispatch, upon delivery of the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment.
4. If the customer is in default of acceptance, this shall be deemed equivalent to handover.

1. Retention of title:
2. The delivered goods (goods subject to retention of title) shall remain our property until all claims to which we are entitled against the buyer now or in the future have been fulfilled, including all current account balance claims. If the buyer acts in breach of contract – in particular if he is in arrears with the payment of a claim for payment – we have the right to withdraw from the contract after we have set a reasonable deadline for performance. The transportation costs incurred for taking back the goods shall be borne by the Buyer. If we take back the reserved goods, this shall already constitute a withdrawal from the contract. It shall also constitute a withdrawal from the contract if we seize the reserved goods. We may utilize reserved goods taken back by us. The proceeds of the realization shall be offset against the amounts owed to us by the buyer after we have deducted a reasonable amount for the costs of the realization.
3. The buyer must treat the reserved goods with care. He must insure them adequately at his own expense against fire, water and theft at replacement value. If maintenance and inspection work becomes necessary, the buyer must carry it out in good time at his own expense.
4. The purchaser may use the goods subject to retention of title and resell them in the ordinary course of business as long as he is not in default of payment. However, he may not pledge the reserved goods or assign them by way of security. The buyer hereby assigns to us in full by way of security the buyer’s claims for payment against his customers arising from the resale of the reserved goods as well as those claims of the buyer in respect of the reserved goods which arise for any other legal reason against his customers or third parties (in particular claims in tort and claims for insurance benefits), including all current account balance claims. We accept this assignment.

The buyer may collect these claims assigned to us for his account in his own name on our behalf as long as we do not revoke this authorization. This shall not affect our right to collect these claims ourselves; however, we shall not assert the claims ourselves and shall not revoke the direct debit authorization as long as the buyer duly meets his payment obligations.

However, if the buyer acts in breach of contract – in particular if he is in default of payment of a claim for payment – we may demand that the buyer informs us of the assigned claims and the respective debtors, informs the respective debtors of the assignment and hands over to us all documents and provides all information that we require to assert the claims.

4. Any processing or transformation of the goods subject to retention of title by the buyer shall always be carried out on our behalf. If the reserved goods are processed with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the new item created by processing as to the goods subject to retention of title.

If the reserved goods are inseparably combined or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other combined or mixed items at the time of combination or mixing. If the goods subject to retention of title are combined or mixed in such a way that the Buyer’s item is to be regarded as the main item, the Buyer and we hereby agree that the Buyer shall transfer co-ownership of this item to us on a pro rata basis. We accept this transfer.

The buyer shall keep the sole ownership or co-ownership of an item created in this way for us.

5. In the event of seizure of the reserved goods by third parties or other interventions by third parties, the buyer must draw attention to our ownership and must inform us immediately in writing so that we can enforce our ownership rights. If the third party is unable to reimburse us for the court or out-of-court costs incurred in this connection, the Buyer shall be liable for such costs.
6. If the buyer so requests, we are obliged to release the securities to which we are entitled to the extent that their realizable value exceeds the value of our outstanding claims against the buyer by more than 10%. However, we may select the securities to be released.

VII Duty to inspect and give notice of defects, claims for defects, statute of limitations, liability:

1. Duty to inspect and give notice of defects:
2. The customer is obliged to inspect the delivered goods for obvious defects that would be readily apparent to the average customer. Obvious defects include, in particular, significant, easily visible damage to the goods. They also include cases in which a different item or an insufficient quantity has been delivered. Such obvious defects must be reported to us in writing within four working days of delivery.
3. Defects that only become apparent later must be reported to us in writing within four working days of their discovery by the customer.
4. In the event of a breach of the obligation to inspect and give notice of defects, the goods shall be deemed to have been approved with regard to the defect in question.
5. Claims for defects:

We shall remedy any defects in the delivered goods that have been duly notified (cf. paragraph 1) and are not time-barred (cf. paragraph 3). This shall be done at our discretion by repair or replacement free of charge. In the event of a replacement delivery, the customer is obliged to return the defective item. If the defect cannot be remedied within a reasonable period of time or if the repair or replacement delivery is deemed to have failed for other reasons, the customer may, at his discretion, demand a reduction in price or remuneration (price reduction) or withdraw from the contract. Rectification shall only be deemed to have failed if we have been given sufficient opportunity to rectify the defect or supply a replacement without achieving the desired result, if we have refused or unreasonably delayed it, if there is reasonable doubt as to the prospects of success or if it is unreasonable for other reasons.

3. Statute of limitations:

The limitation period for claims due to defects in the subject matter of the contract and due to slightly negligent breaches of duty is one year from the start of the statutory limitation period. This also applies to consequential damages. The above easing of the limitation period shall not apply in the cases of §§ 438 Para. 1 No. 2 BGB and 634a Para. 1 No. 2 BGB and also not for claims arising from the Product Liability Act. The statutory limitation period shall apply here. Furthermore, the regulation of § 479 BGB remains unaffected, in whose area of application the statutory limitation period also applies. Finally, the statutory limitation period shall continue to apply in the event of damage resulting from injury to life, limb or health or in the event of a breach of obligations, the fulfillment of which is essential for the proper performance of the contract concluded and on the observance of which the customer may regularly rely.

4. Liability:

We exclude our liability for slightly negligent breach of duty, unless damages from injury to life, body or health or guarantees are affected or claims under the Product Liability Act are affected. Furthermore, liability for the breach of obligations, the fulfillment of which makes the proper execution of the concluded contract possible in the first place and on the observance of which the customer may regularly rely, shall remain unaffected, whereby we shall only be liable in the event of a slightly negligent breach of such obligations limited to foreseeable damages typically arising in transactions of the type in question. The same applies to breaches of duty by our vicarious agents.

5. A return/purchase of faultless goods is excluded.

VIII Withdrawal

Goods that have been ordered and duly delivered cannot be returned.

1. Applicable law/jurisdiction:
2. The law of the Federal Republic of Germany shall apply to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 and comparable international regulations. In the case of export transactions, the international rules on the interpretation of customary contractual formulas (Incoterms) shall apply, unless otherwise stipulated in these Terms and Conditions of Sale.
3. The exclusive place of jurisdiction for all disputes arising from this contract is Essen. However, we are also entitled to sue the customer at his general place of jurisdiction. This agreement on the place of jurisdiction shall also apply if the purchaser has no place of jurisdiction in Germany or if his place of residence or habitual abode is unknown.

Status: January 2021