General Terms and Conditions of SWM Maschinen GmbH in 74821 Mosbach

§ 1 Scope and General Provisions

(1) These General Terms and Conditions (hereinafter "GTC") of SWM Maschinen GmbH (hereinafter "Seller") apply to all contracts for the supply of goods concluded by a consumer or an entrepreneur (hereinafter "Buyer") with the Seller via telephone, fax, e-mail, mail/letter, online ordering process, or online contact form regarding the goods presented by the Seller.

(2) These GTC apply to all deliveries to customers with a delivery address in the Federal Republic of Germany, the Republic of Austria, the Benelux states (Belgium, the Netherlands, Luxembourg), and the French Republic (France).

(3) Defense Clause (Exclusion of Buyer's Terms and Conditions): Any conflicting, deviating, or supplementary terms and conditions of the Buyer – in particular General Terms and Conditions of Purchase – are explicitly rejected and shall not apply. This shall also apply if the Seller carries out the delivery to the Buyer without reservation while being aware of the Buyer's conflicting or deviating terms, or if the Seller does not explicitly object to such terms again upon receipt.

(4) A consumer (B2C) within the meaning of these GTC is any natural person who enters into a legal transaction for purposes that predominantly can neither be attributed to their commercial nor their self-employed professional activity (§ 13 German Civil Code - BGB; § 1 para. 1 no. 2 Austrian Consumer Protection Act - KSchG; as well as corresponding provisions of EU consumer law).

(5) An entrepreneur / business customer (B2B) within the meaning of these GTC is a natural or legal person or a partnership with legal personality who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity (§ 14 BGB; § 1 para. 1 no. 1 Austrian Commercial Code - UGB; as well as corresponding international commercial provisions). Sole proprietors, freelancers, and partnerships (e.g., GbR, OHG, KG) acting for commercial purposes qualify fully as entrepreneurs.

(6) Framework Agreement for Future B2B Transactions: With respect to entrepreneurs, these GTC in their respective version shall also serve as a framework agreement for all future contracts concerning the sale and/or delivery of movable goods with the same Buyer, without the Seller having to refer to them again in each individual case.

§ 2 Offer and Conclusion of Contract

(1) The product descriptions and prices contained in catalogs, written offers, price lists, in the online shop, and in other media of the Seller do not constitute binding offers on the part of the Seller, but serve for the submission of a binding offer by the Buyer (invitatio ad offerendum), unless an offer by the Seller is expressly designated in writing as binding.

(2) The Buyer can submit the offer via the online order form integrated into the Seller's online shop, as well as by telephone, fax, e-mail, letter, or contact form. After completing the electronic ordering process in the online shop, the Buyer submits a legally binding contractual offer with regard to the goods contained in the shopping cart by clicking the button that concludes the ordering process.

(3) The Seller may accept the Buyer's offer within five days:

by transmitting a written order confirmation or an order confirmation in text form (fax, e-mail, or letter),
by delivering the ordered goods to the Buyer, or
by requesting payment from the Buyer after placement of the order.

If several of the aforementioned alternatives exist, the contract shall be concluded at the point in time when one of the aforementioned alternatives occurs first. The period for acceptance of the offer shall begin on the day following the dispatch of the offer by the Buyer and shall end upon the expiry of the fifth day following the dispatch of the offer. If the Seller does not accept the offer within the aforementioned period, this shall be deemed a rejection, with the result that the Buyer is no longer bound by their declaration of intent.

(4) When submitting an offer via the online order form, the text of the contract is saved by the Seller after conclusion of the contract and transmitted to the Buyer in text form (e.g., e-mail) after dispatch of the order.

(5) The German and English languages are available for the conclusion of the contract.

(6) Technical Specifications and Tolerances: Drawings, illustrations, dimensions, weights, or other performance data are only approximate unless they are expressly designated or agreed upon as binding. Customary or technologically unavoidable deviations remain reserved, provided they are reasonable for the Buyer.

§ 3 Prices and Terms of Payment

(1) Prices for Consumers (B2C): Unless otherwise stated in the product description or offer of the Seller, the prices indicated are total prices containing the statutory value-added tax (VAT). Any additional delivery and shipping costs will be stated separately in the respective product description or offer.

(2) Prices for Entrepreneurs (B2B): For deliveries to entrepreneurs, unless otherwise agreed, prices are quoted net, excluding statutory value-added tax and Ex Works Mosbach, Germany (EXW according to Incoterms 2020).

(3) Assembly, Commissioning, and Training (B2B & B2C): The setup, assembly, and/or commissioning of the machinery on site, as well as the instruction and training of operating personnel, are not included in the purchase price of the goods and will be charged separately, unless expressly agreed otherwise in writing.

§ 4 Delivery Time and Default

(1) Delivery dates or periods, which may be agreed as binding or non-binding, require text form.

(2) Force Majeure and Self-Delivery Reserve (B2B): Delays in delivery and performance due to force majeure and due to events which make delivery significantly more difficult or impossible for the Seller on a non-temporary basis – including in particular strikes, lockouts, official orders, etc., even if they occur at suppliers of the Seller or their sub-suppliers – the Seller shall not be responsible for, even in the case of bindingly agreed periods and dates. They entitle the Seller to postpone the delivery or service by the duration of the hindrance plus a reasonable restart period or to withdraw from the contract in whole or in part due to the unfulfilled part. The Seller shall inform the Buyer without delay of the occurrence of such circumstances and their expected effects.

(3) Permanent Hindrance and Compensation: If the hindrance within the meaning of para. 2 lasts longer than three months, the Buyer shall be entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the unfulfilled part. If the delivery time is extended or if the Seller is released from its delivery obligation, the Buyer cannot derive any claims for damages from this against the Seller, provided that the Seller has notified the Buyer without delay. For claims for damages, the provisions in § 13 shall otherwise apply.

(4) Consumer Protection Notice (B2C): The limitations of liability and extensions of time limits in paragraphs 2 and 3 apply to consumers only within the framework of statutory provisions.

(5) Partial Deliveries: The Seller shall be entitled to make partial deliveries and partial performances at any time, unless the partial delivery or partial performance is unreasonable or of no interest to the Buyer.

(6) Cooperation Duties: Compliance with the Seller's delivery obligations presupposes the timely and proper fulfillment of the Buyer's obligations (e.g., provision of necessary documents, granting of approvals, agreed advance payments).

(7) Default of Acceptance: If the Buyer is in default of acceptance or culpably violates other duties of cooperation, the Seller shall be entitled to demand compensation for the damage incurred, including any additional expenses (e.g., storage costs). Upon the occurrence of default of acceptance, the risk of accidental deterioration and accidental destruction of the goods shall pass to the Buyer.

§ 5 Right of Withdrawal (Cancellation Right for Consumers)

(1) Consumers residing in the European Union are entitled to a statutory right of withdrawal for contracts concluded at a distance (e.g., orders via e-mail, phone, fax, letter, or online shop).

(2) Detailed provisions as well as exceptions from the right of withdrawal are set out in the Seller's separate Cancellation Policy (Widerrufsbelehrung).

(3) Exercise of the Right of Withdrawal: Consumers may exercise their right of withdrawal by an unambiguous declaration (e.g., a letter sent by post, fax, or e-mail). For orders placed via the online shop, the withdrawal may additionally be exercised via the cancellation button ("Vertrag widerrufen") provided in the shop.

(4) Exclusion for Business Customers: The right of withdrawal does not apply to entrepreneurs (B2B).

§ 6 Delivery Conditions, Failed Delivery, and Notification (Avisation)

(1) Goods shall be delivered by dispatch to the delivery address specified by the Buyer, unless otherwise agreed. For freight/forwarding delivery, delivery shall be made "free curbside" (frei Bordsteinkante), unless stated otherwise in the shipping information.

(2) Failed Delivery Costs and Re-Delivery: If the delivery of the goods fails for reasons within the Buyer's responsibility – in particular if the Buyer is not present at the agreed delivery date despite prior notification (delivery avisation by the freight forwarder) – the Buyer shall bear all reasonable additional costs incurred by the Seller as a result (e.g., re-delivery fees, storage charges, or return shipment costs). With regard to the original initial shipping costs, this sentence shall not apply to consumers if they effectively exercise their right of withdrawal.

(3) Self-Delivery Reserve towards Entrepreneurs (B2B): The Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-delivery by suppliers. This applies only in the event that the non-delivery is not the fault of the Seller and the Seller has concluded a specific matching transaction (Deckungsgeschäft) with the supplier with due care. In the event of non-availability, the entrepreneur will be informed immediately and any counter-performance received will be refunded immediately.

(4) Special Rule for Consumers (B2C): The aforementioned self-delivery reserve does not apply towards consumers. The Seller assumes the procurement risk towards consumers in accordance with statutory provisions.

§ 7 Passing of Risk

(1) Towards Consumers (B2C): The risk of accidental destruction and accidental deterioration of the sold goods shall pass to the consumer (within the EU, in particular DE, AT, FR, Benelux) only upon physical handover of the goods to the consumer or a recipient designated by the consumer. This applies regardless of whether the shipment is insured or not.

(2) Towards Entrepreneurs (B2B): The risk of accidental destruction and accidental deterioration shall pass to the entrepreneur as soon as the Seller has delivered the item to the freight forwarder, the carrier, or the person or institution otherwise appointed to carry out the shipment (EXW Mosbach).

§ 8 Warranty and Liability for Defects

(1) Quality of Goods and Customer Specifications: The quality of the goods is exclusively determined by the agreed technical delivery specifications. If the Seller delivers according to drawings, specifications, samples, etc. provided by the Buyer, the Buyer assumes the risk of suitability for the intended purpose.

(2) Exclusion of Liability for Improper Use: The Seller shall not be liable for defects caused by unsuitable or improper use, faulty assembly or commissioning by the Buyer or third parties, natural wear and tear, or negligent handling. The same applies to improper modifications or repair work carried out without the Seller's consent.

(3) Warranty Rights for Consumers (B2C): Statutory warranty provisions of the consumer's country of residence within the EU apply. In particular:

Transport Damages (B2C): Consumers are requested to report obvious transport damages to the carrier and to inform the Seller. Failure to do so has no effect on the consumer's statutory warranty claims.
Right to Repair (EU Right to Repair): If the consumer chooses repair (rectification) in case of a defect within the statutory warranty period and this is successfully executed, the warranty period for the repaired defect shall extend in accordance with statutory regulations.

(4) Special Warranty Rules for Entrepreneurs (B2B): If the Buyer acts as an entrepreneur, the following provisions apply additionally:

Remedy & Limitation Period: The Seller shall have the choice of the type of remedy (repair or replacement). For new goods, the limitation period for defect claims is one year from delivery; for used goods, warranty claims are excluded.
Commercial Inspection and Duty to Report Defects (§ 377 HGB / § 377 UGB): If the Buyer is a merchant, the delivered goods must be inspected immediately after handover. Obvious defects must be reported to the Seller in writing within 8 working days after delivery, stating the nature and extent of the defect as well as the invoice number. Hidden defects must be reported in writing immediately, at the latest within 2 working days after their discovery. If the Buyer fails or delays to give timely notice, the delivered goods shall be deemed approved in respect of the defect concerned; the Buyer loses all warranty, repair, replacement, rescission, and compensation claims for this specific defect.
Exclusion upon Acceptance / Sample Inspection: If an inspection/acceptance of the goods or an initial sample test was agreed, the notification of defects is excluded if the Buyer could have detected the defect during careful inspection or sample testing.

(5) Opportunity to Inspect and Duties to Cooperate (B2B): The entrepreneur must allow the Seller the necessary time and opportunity to inspect the reported defect. Defective goods must be returned to the Seller upon request; the Seller bears transport costs only if the defect notice is justified.

(6) Statutory Recourse Claims (B2B): Statutory recourse claims of the Buyer against the Seller shall exist only to the extent that the Buyer has not made any agreements with its customer exceeding statutory defect claims.

§ 9 Retention of Title

(1) Towards Consumers (B2C): The delivered goods remain the property of the Seller until full payment of the purchase price.

(2) Towards Entrepreneurs (B2B) – Extended and Prolonged Retention of Title:

The goods shall remain the property of the Seller until full settlement of all claims arising from the current business relationship (including all balance claims from current accounts).
The Buyer is authorized to process and resell the reserved goods in the ordinary course of business, as long as it is not in default of payment. Pledges or transfers by way of security are impermissible. The Buyer hereby assigns to the Seller in full by way of security all claims arising from the resale or other legal grounds regarding the reserved goods. The Seller revocably authorizes the Buyer to collect the assigned claims in its own name.
In the event of third-party access to the reserved goods (e.g., seizures), the Buyer shall point out the Seller's ownership and notify the Seller immediately.

§ 10 Payment, Payment Methods, and Default

(1) Advance Payment Principle for Direct Orders: For orders submitted by telephone, fax, e-mail, or letter, delivery shall generally be made only against advance payment (prepayment via bank transfer), unless expressly agreed otherwise in writing.

(2) Special Provision for Public Authorities (Purchase on Account): Legal entities under public law, public authorities, public schools, armed forces (Bundeswehr), and other public sector institutions may be granted payment on account following separate review and explicit written agreement. In this written individual agreement, the specific payment term (either 14 or 30 days from the invoice date) shall be determined by the Seller. Any cash discount (skonto), as well as its exact rate and time limit, is likewise permissible only if explicitly agreed upon in writing beforehand. Without such explicit agreement, no cash discount deduction is permitted, and the invoice shall be due immediately.

(3) Payment Methods in Online Shop: For orders via the online shop, the payment methods indicated in the ordering process (e.g., prepayment, PayPal, Amazon Pay, installment payment) are available to the Buyer.

(4) Due Date and Allocation of Payments: Unless a deviating payment term has been expressly agreed in writing, invoices are due for payment immediately without deduction.

(5) Default Interest: If the Buyer defaults on payment, the Seller is entitled to demand default interest at the rate of 9 percentage points above the base interest rate towards entrepreneurs (B2B) and 5 percentage points above the base interest rate towards consumers (B2C).

(6) Set-off and Retention: The Buyer shall have the right of set-off or retention only if its counterclaims have been legally established or are undisputed.

§ 11 Design and Structural Changes

The Seller reserves the right to make customary design or structural modifications at any time, provided these do not impair the functionality and value of the delivered item.

§ 12 Proprietary Rights and Patents (B2B)

If the design or construction of a delivered item is based on specifications provided by the Buyer (custom manufacturing), the Buyer shall indemnify and hold harmless the Seller against all third-party claims arising from intellectual property infringements.

§ 13 Limitation of Liability

(1) Unlimited Liability: The Seller shall be liable without limitation according to statutory provisions:

for intent or gross negligence by the legal representatives or executive employees of the Seller,
for culpable injury to life, body, or health,
in the case of express assumption of a guarantee for quality/features (Beschaffenheitsgarantie),
for claims under mandatory product liability laws (Produkthaftungsgesetz).

(2) Limitation of Liability towards Entrepreneurs (B2B): Unless otherwise stated in paragraph 1, claims for damages by the entrepreneur against the Seller are excluded. In particular, liability for consequential damages, lost profits, business interruption, or pure financial losses is excluded. If the Seller negligently breaches an essential contractual duty (cardinal duty), liability towards entrepreneurs shall be limited to the foreseeable, contract-typical damage.

(3) Transparency Clause for Consumers (B2C): General blanket exclusions or rigid caps on liability do not apply to consumers. Statutory liability rules apply in full to consumers.

(4) Liability of Employees and Agents: To the extent that the Seller's liability is excluded or limited, this shall also apply in favor of its employees, representatives, and vicarious agents.

§ 14 Applicable Law, Jurisdiction, and Severability

(1) Applicable Law: The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). For consumers, mandatory consumer protection laws of the EU member state in which the consumer has their habitual residence (e.g., Austria, France, Belgium, Netherlands, Luxembourg) remain unaffected (Art. 6 para. 2 Rome I Regulation).

(2) Place of Jurisdiction: The exclusive place of jurisdiction for merchants/entrepreneurs (B2B) is 74821 Mosbach, Germany. For consumers (B2C), statutory places of jurisdiction of their respective place of residence apply.

(3) Severability Clause: Should any provision of these GTC be or become invalid or unenforceable, the validity of the remaining provisions shall remain unaffected.