General Terms and Conditions of SWM Maschinen GmbH in 74821 Mosbach

§ 1 Scope of Application

(1) These General Terms and Conditions (hereinafter referred to as "T&C") of SWM Maschinen GmbH (hereinafter referred to as "Seller"), apply to all contracts for the delivery of goods concluded by a consumer or entrepreneur (hereinafter referred to as "Buyer") with the Seller by telephone, fax, email, online ordering process, or online contact form with regard to the goods displayed by the Seller in its online shop.

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

(3) Defense Clause (Exclusion of Buyer's Terms): Contradictory, deviating, or supplementary conditions of the Buyer – in particular General Terms of Purchase – shall not be recognized and are hereby expressly rejected. This shall also apply if the Seller carries out the delivery to the Buyer unconditionally in knowledge of contradictory or deviating conditions of the Buyer, or does not expressly object to such conditions again upon receipt.

(4) Consumer within the meaning of these T&C is any natural person who enters into a legal transaction for purposes that predominantly cannot be attributed to their commercial or independent 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) Entrepreneur within the meaning of these T&C is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity (§ 14 German Civil Code - BGB; § 1 para. 1 no. 1 Austrian Commercial Code - UGB as well as corresponding international commercial regulations).

(6) Supplement for future business relationships with entrepreneurs (B2B): Vis-à-vis entrepreneurs, these T&C in their respective valid version shall also apply 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 contained in the Seller's online shop and other media do not constitute binding offers on the part of the Seller, but serve for the submission of a binding offer by the Buyer.

(2) The Buyer can submit the offer via the online order form integrated into the Seller's online shop. After going through the electronic ordering process, the Buyer submits a legally binding contract offer in relation to the goods contained in the shopping cart by clicking the button concluding the ordering process. Furthermore, the Buyer can also submit the offer by telephone, fax, email, or contact form.

(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 or email),
by delivering the ordered goods to the Buyer, or
by requesting payment from the Buyer after placement of their order.

If several of the aforementioned alternatives exist, the contract shall be concluded at the point in time at which 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 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 contract text shall be stored by the Seller after conclusion of the contract and transmitted to the Buyer in text form (e.g., email) after dispatch of their order.

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

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

§ 3 Prices and Terms of Payment

(1) Unless otherwise stated in the Seller's product description, the prices indicated are total prices which include statutory value added tax (VAT). Any additional delivery and shipping costs will be specified separately in the respective product description.

(2) For deliveries to entrepreneurs (B2B), unless otherwise agreed, prices are net ex statutory value added tax and ex warehouse Mosbach (EXW pursuant to Incoterms 2020).

(3) On-site installation, assembly, and/or commissioning of the machines as well as instruction and training of operating personnel are not included in the purchase price and will be charged separately unless expressly agreed otherwise in writing.

§ 4 Delivery and Performance Time

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

(2) Force Majeure and Disruptions in Self-Delivery (B2B): Delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for the Seller on a more than temporary basis – including, in particular, strikes, lockouts, official orders, etc., even if they occur at suppliers of the Seller or their sub-suppliers – shall not be the responsibility of the Seller, even in the case of bindingly agreed deadlines and dates. They entitle the Seller to postpone the delivery or performance for 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 immediately of the occurrence of such circumstances and their expected effects.

(3) Permanent Hindrance and Damages: If the hindrance within the meaning of para. 2 lasts longer than three months, the Buyer is 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 notified the Buyer immediately. Otherwise, the provisions in § 13 shall apply to claims for damages.

(4) Consumer Protection Notice (B2C): The limitations of liability and extensions of deadlines in paragraphs 2 and 3 apply to consumers only within the framework of statutory provisions. An exclusion of liability for damages in the event of intentional or grossly negligent breach of duty by the Seller is excluded vis-à-vis consumers.

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

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

(7) Default of Acceptance: If the Buyer defaults on acceptance or culpably breaches other duties of cooperation, the Seller is entitled to demand compensation for the damage incurred, including any extra 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 and Digital Withdrawal Function (Withdrawal Button)

(1) Consumers residing in the European Union are entitled to a statutory right of withdrawal for contracts concluded at a distance.

(2) The detailed provisions and exceptions to the right of withdrawal are governed by the Seller's separate Cancellation Policy (Widerrufsbelehrung).

(3) Exercise via Digital Withdrawal Function (Withdrawal Button): Consumers may exercise their right of withdrawal, in addition to the methods mentioned in the Cancellation Policy, via the button ("Cancel Contract") provided in the online shop. Via this button, the consumer reaches a confirmation page where they can provide details to identify the contract and send the withdrawal declaration electronically. Receipt of the withdrawal will be confirmed to the consumer immediately by email via electronic means.

(4) The right of withdrawal does not apply to entrepreneurs.

§ 6 Delivery and Shipping Conditions / Self-Delivery Reservation

(1) Delivery of goods shall be made by dispatch to the delivery address specified by the Buyer, unless agreed otherwise. In the case of freight forwarder shipments, delivery is made "free curbside", unless otherwise specified in the shipping information.

(2) If the delivery of the goods fails for reasons attributable to the Buyer, the Buyer shall bear the reasonable costs incurred by the Seller as a result. This does not apply with regard to the outbound shipping costs if the Buyer effectively exercises their right of withdrawal.

(3) Self-Delivery Reservation vis-à-vis Entrepreneurs (B2B): The Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-delivery. This applies only in the event that the non-delivery is not the fault of the Seller and the Seller has concluded a concrete hedging transaction with the supplier with due care. In the event of non-availability, the entrepreneur will be informed immediately and any consideration received will be refunded without delay.

(4) Special Regulation for Consumers (B2C): The above self-delivery reservation does not apply vis-à-vis consumers. The Seller assumes the procurement risk vis-à-vis consumers within the framework of statutory provisions.

§ 7 Transfer of Risk

(1) Vis-à-vis Consumers (B2C): The risk of accidental destruction and accidental deterioration of the sold goods passes to the consumer upon delivery of the goods to the consumer or a recipient named by the consumer (for deliveries within the EU, in particular DE, AT, FR, Benelux). This applies regardless of whether the shipment is insured or not.

(2) Vis-à-vis 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 designated to carry out the shipment.

§ 8 Warranty / Liability for Defects

(1) Quality of the Goods and Customer Specifications: The quality of the goods is based exclusively on the agreed technical delivery specifications. If the Seller is to deliver according to drawings, specifications, samples, etc. of the Buyer, the Buyer shall assume the risk of suitability for the intended purpose. Decisive for the contractual condition of the goods is the time of the transfer of risk pursuant to § 7.

(2) Exclusion of Liability in Case of Improper Influence: The Seller shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the Buyer or third parties, customary wear and tear, or faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the Buyer or third parties without the consent of the Seller. The same applies to defects that only insignificantly diminish the value or usability of the goods.

(3) Assertion vis-à-vis Consumers (B2C): Vis-à-vis consumers, the statutory provisions on liability for defects of the respective EU country of residence as well as applicable EU law shall apply. Notwithstanding this:

Transport Damage (B2C): Consumers are requested to complain about delivered goods with obvious transport damage to the carrier and to inform the Seller thereof. If the consumer fails to do so, this shall have no effect whatsoever on their statutory warranty claims.
Right to Repair & Period Extension (EU Right to Repair): If the consumer decides in favor of defect rectification by repair (remedial work) in the event of a material defect within the statutory warranty period and this is successfully carried out by the Seller, the limitation period for the repaired defect shall be extended by the period prescribed by law (e.g., pursuant to § 475e BGB or respective national provisions).
Guarantees and Guarantee Labels: Insofar as durability or manufacturer guarantees are granted and stated in the online shop, the consumer's statutory warranty rights remain unaffected.

(4) Special Regulations for Entrepreneurs (B2B): If the Buyer acts as an entrepreneur, the following provisions apply differently:

Choice of Subsequent Performance & Limitation Period: The Seller has the choice of the type of subsequent performance (rectification of defects or replacement delivery). In the case of new goods, the limitation period for defect claims is one year from delivery of the goods; in the case of used goods, claims for defects are excluded. The limitation period does not start anew if a replacement delivery takes place within the scope of liability for defects.
Exceptions to Period Reductions: The above reductions of periods and limitations of liability do not apply to claims for damages and reimbursement of expenses by the Buyer, in the case of fraudulent concealment of a defect, for goods that have been used for a building in accordance with their customary manner of use, in the case of statutory obligations to provide updates for digital products, as well as in the case of liability for damages resulting from injury to life, body, or health.
Commercial Inspection and Notice Duty (§ 377 HGB / § 377 UGB): If the Buyer acts as a merchant, the goods must be inspected by them immediately after delivery. Any obvious defects must be reported to the Seller in writing within 8 working days after delivery of the goods, stating the nature and scope 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 notice, the goods shall be deemed approved and the Buyer shall lose all defect and damage claims regarding this defect.
Exclusion upon Acceptance/Initial Sample Testing: If an acceptance of the goods or an initial sample test was agreed upon, the notification of defects is excluded which the Buyer could have established during careful acceptance or initial sample testing.

(5) Inspection Opportunity, Cooperation Duties, and Grace Period Setting (B2B):

The entrepreneur must give the Seller the necessary time and opportunity to establish the defect complained of. Objects of complaint must be returned to the Seller immediately upon request. The Seller shall bear the transport costs only if the notice of defect is justified. If the Buyer fails to comply with these obligations or makes changes or repairs to the goods already complained of without prior written consent of the Seller, all defect claims shall be forfeited.
In the event of a justified and timely notice of defect, the Seller shall, at its option, remedy the defect or deliver a defect-free replacement. If the Seller fails to comply with this obligation within a reasonable period, the Buyer may set a final grace period in writing.
After unsuccessful expiry of this grace period, the Buyer may demand a reduction of the price, withdraw from the contract, or carry out the necessary repair themselves or through a third party at the expense and risk of the Seller (self-remedy). Reimbursement of costs is excluded insofar as the expenses increase because the goods were brought to a place other than the place of delivery after delivery, unless this corresponds to the intended use.

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

§ 9 Retention of Title

(1) Vis-à-vis Consumers (B2C): Delivered goods remain the property of the Seller until full payment of the purchase price.

(2) Vis-à-vis Entrepreneurs (B2B) – Extended and Prolonged Retention of Title:

Until fulfillment of all claims (including all balance claims from current accounts) to which the Seller is entitled against the Buyer for any legal reason now or in the future, the Seller shall be granted securities which it will release upon request at its option insofar as their value permanently exceeds the claims by more than 20%.
The goods remain the property of the Seller. Processing or transformation always takes place for the Seller as manufacturer, but without obligation for it. If the (co-)ownership of the Seller expires through combination, it is already agreed now that the (co-)ownership of the Buyer in the uniform item shall pass to the Seller in proportion to value (invoice value). The Buyer shall store the (co-)ownership of the Seller free of charge. Goods in which the Seller holds (co-)ownership are referred to below as reserved goods.
The Buyer is entitled to process and sell the reserved goods in the ordinary course of business as long as it is not in default. Pledges or transfers of security are impermissible. The claims arising from the resale or any other legal reason (insurance, tort) regarding the reserved goods (including all balance claims from current account) are assigned by the Buyer in full to the Seller already now by way of security. The Seller revocably authorizes the Buyer to collect the claims assigned to the Seller for its account in its own name. This collection authorization can only be revoked if the Buyer fails to properly meet its payment obligations.
In the event of third-party access to the reserved goods, in particular seizures, the Buyer shall point out the ownership of the Seller and inform the Seller immediately so that the Seller can enforce its property rights. Insofar as the third party is unable to reimburse the Seller for judicial or extrajudicial costs incurred in this context, the Buyer shall be liable for this.
In the event of behavior contrary to contract by the Buyer – in particular default of payment – the Seller is entitled to take back the reserved goods or, if applicable, demand assignment of the Buyer's claims for surrender against third parties. Neither taking back nor seizing the reserved goods by the Seller constitutes a withdrawal from the contract.

§ 10 Payment and Default of Payment

(1) Unless agreed otherwise, invoices of the Seller are payable immediately. The different payment options will be communicated to the Buyer in the Seller's online shop. The Seller is entitled, despite contrary provisions of the Buyer, to offset payments first against the Buyer's older debts. If costs and interest have already been incurred, the Seller is entitled to offset payment first against costs, then against interest, and finally against the principal performance.

(2) Payment Methods and Settlement Conditions:

Cash on Delivery (Nachnahme): If cash on delivery is agreed upon, payment is due immediately upon handover of goods without deduction in cash.
Prepayment by Bank Transfer: If prepayment is agreed, payment is due immediately after conclusion of contract, unless the parties have agreed on a later due date.
PayPal: When selecting a payment method offered by PayPal, payment processing is carried out via the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (subject to applicable PayPal Terms of Use).
Amazon Payments: When selecting "Amazon Payments", payment processing is carried out via Amazon Payments Europe s.c.a., 38 avenue John F. Kennedy, L-1855 Luxembourg. By clicking the button concluding the ordering process, the Buyer simultaneously issues a payment order to Amazon.
PayPal Credit (Instalment Payment): When selecting "PayPal Credit", the Seller assigns its payment claim to PayPal. Prior to acceptance, PayPal conducts a credit check. If approved, the Buyer pays with debt-discharging effect to PayPal. The Seller remains responsible for general Buyer inquiries (e.g., regarding goods, delivery time, shipment, returns, complaints, withdrawal declarations) even in the case of assignment of claims.
easyCredit Instalment Purchase: When selecting "easyCredit-Ratenkauf", payment processing is carried out via TeamBank AG Nürnberg, Beuthener Straße 25, 90471 Nuremberg, Germany, to which the Seller assigns its payment claim. TeamBank AG conducts a credit check prior to acceptance. Upon approval, the Buyer pays with debt-discharging effect to TeamBank AG. The Seller remains responsible for general inquiries (delivery, returns, withdrawal, etc.). Supplementarily, the T&C of TeamBank AG apply.

(3) A payment shall be deemed made only when the Seller can dispose of the amount.

(4) Default of Payment: 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 vis-à-vis entrepreneurs (B2B) and 5 percentage points above the base interest rate vis-à-vis consumers (B2C). The Seller reserves the right to prove and claim higher damages caused by default. The Buyer is permitted to prove that lesser or no damage was incurred.

(5) Acceleration & Provision of Security (B2B): If circumstances become known to the Seller that call the creditworthiness of the Buyer into question (in particular if the Buyer stops payments), the Seller is entitled to declare the entire remaining debt due and demand advance payments or provision of security.

(6) Set-Off and Retention: The Buyer is entitled to set-off, retention, or reduction only if its counterclaims have been legally established or are undisputed. However, the Buyer is also entitled to retention due to counterclaims arising from the same contractual relationship.

§ 11 Design Changes

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

§ 12 Industrial Property Rights and Patents (B2B)

(1) If the design or construction of a delivery item originates from the Buyer (custom-made product), the Buyer shall indemnify and hold the Seller harmless from all third-party claims.

§ 13 Limitation of Liability

(1) Unlimited Liability: The Seller shall be liable without limitation for all contractual, quasi-contractual, and statutory claims:

in the event of intent or gross negligence by statutory representatives or executive employees of the Seller,
in the event of culpable injury to life, body, or health,
in the event of express assumption of a guarantee for quality or the presence of a characteristic, provided the guarantee was intended precisely to protect the Buyer against consequential damage,
in the case of claims under the German Product Liability Act (Produkthaftungsgesetz).

(2) Limitation of Liability vis-à-vis Entrepreneurs (B2B): Unless provided otherwise in paragraph 1, claims of the Buyer against the Seller for damages are excluded. This applies in particular to:

claims for damages due to breach of duties arising from the obligation and from tort,
damages that did not arise on the delivered goods themselves (consequential damages),
lost profit, loss of operation, loss of earnings, or other pure financial losses.

If the Seller negligently breaches an essential contractual obligation (cardinal duty), liability vis-à-vis entrepreneurs shall be limited to the contract-typical, reasonably foreseeable damage. Otherwise, the Seller's statutory right to subsequent performance shall take priority vis-à-vis entrepreneurs.

(3) Transparency Rule for Consumers (B2C): Vis-à-vis consumers, blanket liability exclusions or rigid limitations of liability to the value of the goods do not apply. For consumers, statutory liability regulations apply without restriction.

(4) Liability of Employees and Agents: Insofar as the liability of the Seller is excluded or limited, this shall also apply to the same extent in favor of the personal liability of employees, workers, staff, statutory representatives, and vicarious agents of the Seller.

(5) Burden of Proof: Statutory rules on the burden of proof remain unaffected by the above provisions.

§ 14 Applicable Law, Jurisdiction, and Severability Clause

(1) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Sales Convention (CISG), whereby mandatory provisions of consumer protection law 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 for merchants is 74821 Mosbach, Germany. For consumers, the statutory places of jurisdiction of their respective country of residence inside and outside Germany apply.

(3) Should any provision of these T&C be invalid, the contract shall remain valid in all other respects.