General Terms and Conditions of SWM Maschinen GmbH in 74821 Mosbach

§ 1 Scope of the Terms and Conditions

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

(2) These T&Cs 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) Defensive clause (Exclusion of third-party purchasing conditions): Conflicting, deviating, or supplementary conditions of the Buyer – in particular General Terms and Conditions of Purchase – are not recognized and are hereby expressly rejected. This also applies if the Seller, in knowledge of conflicting or deviating conditions of the Buyer, carries out the delivery to the Buyer without reservation or does not expressly reject such conditions again after their receipt.

(4) A consumer within the meaning of these T&Cs is any natural person who enters into a legal transaction for purposes that predominantly are outside their trade, business, or profession (§ 13 BGB; § 1 Para. 1 Z 2 Austrian KSchG as well as corresponding provisions of EU consumer law).

(5) An entrepreneur within the meaning of these T&Cs is a natural or legal person or a partnership with legal capacity who or which, when entering into a legal transaction, acts in exercise of their trade, business, or profession (§ 14 BGB; § 1 Para. 1 Z 1 Austrian UGB as well as corresponding international trade regulations). Sole traders, freelancers, and partnerships (e.g., GbR, OHG, KG) acting for commercial purposes fall fully under the definition of an entrepreneur.

(6) Addition for future business relationships with entrepreneurs (B2B): Vis-à-vis entrepreneurs, these T&Cs in their respective valid version also apply as a framework agreement for all future contracts for 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 price details contained in catalogs, written offers, price lists, the online shop, and other media of the Seller do not constitute binding offers by the Seller, but serve for the submission of a binding offer by the Buyer (invitatio ad offerendum), unless an offer from the Seller is expressly designated in writing as binding.

(2) The Buyer may submit the offer via the online order form integrated into the Seller's online shop as well as by phone, fax, e-mail, letter, or contact form. After going through 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 can 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 the order has been placed.

If several of the aforementioned alternatives exist, the contract is concluded at the time when one of the aforementioned alternatives occurs first. The period for accepting the offer begins on the day after the offer is sent by the Buyer and ends with 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 his declaration of intent.

(4) When an offer is submitted via the online order form, the text of the contract is stored by the Seller after the conclusion of the contract and transmitted to the Buyer in text form (e.g., e-mail) after the order has been sent.

(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 approximately authoritative unless they are expressly designated or agreed as binding. Customary or technologically unavoidable deviations are reserved, provided they are reasonable for the Buyer.

§ 3 Prices and Terms of Payment

(1) Prices towards consumers (B2C): Unless otherwise stated in the Seller's product description or offer, the prices quoted are total prices that include statutory value-added tax. Any additional delivery and shipping costs that may apply will be stated separately in the respective product description or offer.

(2) Prices towards entrepreneurs (B2B): For deliveries to entrepreneurs, unless otherwise agreed, the prices are exclusive of statutory value-added tax and ex warehouse Mosbach (EXW according to Incoterms 2020).

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

§ 4 Delivery and Performance Time

(1) Delivery dates or delivery periods, which can be agreed upon bindingly or non-bindingly, must be in text form.

(2) Force Majeure and disruptions to self-supply (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 not just temporarily – this includes in particular strikes, lockouts, official orders, etc., even if they occur at the Seller's suppliers or their sub-suppliers – the Seller is not 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 start-up time or to withdraw from the contract in whole or in part because of the unfulfilled part. The Seller will inform the Buyer immediately of the occurrence of such circumstances and their expected effects.

(3) Permanent hindrance and claims for damages: If the hindrance within the meaning of paragraph 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 his delivery obligation, the Buyer cannot derive any claims for damages against the Seller from this, provided the Seller has notified the Buyer immediately. For claims for damages, the provisions in § 13 apply otherwise.

(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.

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

(6) Buyer's duties to cooperate: Compliance with the Seller's delivery and performance 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 defaults in acceptance or culpably breaches other duties to cooperate, the Seller is 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 loss of the goods passes to the Buyer.

§ 5 Right of Withdrawal

(1) Consumers resident in the European Union have a statutory right of withdrawal in the case of distance selling contracts (e.g., orders by e-mail, phone, fax, letter, or online shop).

(2) The detailed provisions as well as the exceptions to the right of withdrawal are governed by the Seller's separate cancellation policy.

(3) Exercise of the right of withdrawal: Consumers can exercise their right of withdrawal, in addition to the ways mentioned in the cancellation policy, by a clear declaration (e.g., a letter sent by post, fax, or e-mail). For orders via the online shop, the withdrawal can additionally be exercised via the button provided there ("Revoke contract").

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

§ 6 Delivery Conditions, Failed Delivery, and Notification

(1) The delivery of goods takes place on the dispatch route to the delivery address specified by the Buyer, unless otherwise agreed. For forwarding deliveries, delivery is made "free to curb", unless the shipping information states otherwise.

(2) Costs of failed delivery and second delivery: If the delivery of the goods fails for reasons for which the Buyer is responsible – in particular if the Buyer cannot be found on the agreed delivery day despite prior announcement (delivery notification by the forwarding agent) – the Buyer bears the reasonable additional expenses incurred by the Seller as a result (e.g., fees for a second delivery, demurrage, or return transport costs). This does not apply with regard to the original shipping costs for consumers if they effectively exercise their right of withdrawal.

(3) Reservation of self-supply vis-à-vis entrepreneurs (B2B): The Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-supply. This applies only if the Seller is not responsible for the non-delivery and has concluded a specific covering transaction with the supplier with due diligence. In the event of non-availability, the entrepreneur will be informed immediately, and any consideration received will be refunded immediately.

(4) Special regulation for consumers (B2C): The above reservation of self-supply does not apply to consumers. The Seller bears the procurement risk vis-à-vis consumers within the scope of statutory provisions.

(5) Fulfillment of environmental obligations for electrical appliances and packaging (B2B): When selling electrical and electronic equipment to entrepreneurs (B2B) within Germany as well as for cross-border shipping to other European countries (especially Austria, France, and the Benelux countries), the obligation for the professional disposal of the old devices and to bear the associated costs at the end of their service life is fully transferred to the Buyer in accordance with the permissible national implementations of the European WEEE Directive. The Buyer undertakes to properly recycle the devices at the end of their service life at his own expense in accordance with the applicable legal provisions of his country. Insofar as the Seller is legally obliged in the respective country of destination to appoint an authorized representative or to participate in a system as the initial distributor, he shall comply with this administrative registration and reporting obligation; however, the physical disposal obligation and the associated costs remain contractually with the Buyer. Note on transport and commercial packaging: The transport and commercial packaging supplied by us is not pre-licensed in the respective country of destination. The legal obligation to participate in the system, take back, and report in accordance with the national packaging ordinance applicable in the country of destination (and in accordance with § 15 VerpackG within the Federal Republic of Germany) lies entirely with the Buyer on his own responsibility and at his own expense.

§ 7 Transfer of Risk

(1) Towards consumers (B2C): The risk of accidental loss and accidental deterioration of the sold goods only passes to the consumer upon handover of the goods to the consumer or to a recipient named by him for deliveries to consumers (within the EU, in particular DE, AT, FR, Benelux). This applies regardless of whether the shipment is insured or not.

(2) Towards entrepreneurs (B2B): The risk of accidental loss and accidental deterioration passes to the entrepreneur as soon as the Seller has delivered the item to the forwarding agent, the carrier, or the person or institution otherwise appointed to execute the dispatch (EXW Mosbach).

§ 8 Warranty / Liability for Defects

(1) Condition of the goods and customer specifications: The condition of the goods is determined exclusively by the agreed technical delivery specifications. If the Seller has to deliver according to drawings, specifications, samples, etc. of the Buyer, the Buyer bears the risk of suitability for the intended use.

(2) Exclusion of liability in case of improper influence: The Seller is not responsible for material defects caused by unsuitable or improper use, incorrect assembly or commissioning by the Buyer or third parties, normal wear and tear, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the Buyer or third parties without the Seller's consent.

(3) Assertion towards consumers (B2C): The statutory provisions on liability for defects of the respective EU country of residence and applicable EU law apply to consumers. Without prejudice to this, the following applies:

• Transport damages (B2C): Consumers are requested to complain about delivered goods with obvious transport damage to the deliverer and to inform the Seller of this. If the consumer fails to do so, this has no effect on his statutory warranty claims.
• Right to Repair (EU Right to Repair): If the consumer chooses to remedy the defect by repair in the event of a material defect within the statutory warranty period and if this is successfully carried out by the Seller, the limitation period for the repaired defect is extended by the legally prescribed period.

(4) Special regulations for entrepreneurs (B2B): If the Buyer acts as an entrepreneur, the following provisions apply in deviation:

• Choice of supplementary performance & limitation period: The Seller has the choice of the type of supplementary performance (remedy of the defect or replacement delivery). For new goods, the limitation period for defect claims is one year from the delivery of the goods; for used goods, defect claims are excluded.
• Commercial duty to inspect and give notice of defects (§ 377 HGB / § 377 UGB): If the Buyer acts as 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, specifying the nature and extent of the defect and 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 to notify or is late in notifying in due time, the delivered goods shall be deemed approved with regard to the respective defect; the Buyer loses all claims for warranty, rectification, withdrawal, and damages for this defect.
• Exclusion upon acceptance/initial sample inspection: If acceptance of the goods or an initial sample inspection has been agreed, notification of defects that the Buyer could have discovered during careful acceptance or initial sample inspection is excluded.

(5) Opportunity for inspection and duties to cooperate (B2B): The Seller must be given the necessary time and opportunity by the entrepreneur to determine the reported defect. Objected goods must be returned to the Seller immediately upon request. The Seller only bears the transport costs if the notice of defects is justified.

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

§ 9 Retention of Title

(1) Towards consumers (B2C): The delivered goods remain the property of the Seller until the purchase price has been paid in full.

(2) Towards entrepreneurs (B2B) – Extended and prolonged retention of title:

• The goods remain the property of the Seller until the fulfillment of all claims (including all balance claims from current accounts) to which the Seller is entitled from the business relationship.
• The Buyer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers by way of security are inadmissible. The Buyer hereby assigns the claims arising from the resale with regard to the reserved goods in full to the Seller by way of security. The Seller revocably authorizes him to collect the claims assigned to the Seller in his own name.
• In the event of third-party access to the reserved goods (e.g., seizures), the Buyer will point out the Seller's ownership and notify the Seller immediately.

§ 10 Payment, Payment Methods, and Default of Payment

(1) Principle of advance payment for direct orders: For orders received by phone, fax, e-mail, or letter, delivery is generally only made against advance payment (prepayment by bank transfer), unless expressly agreed otherwise in writing between the parties in an individual case.

(2) Special regulation for public clients (purchase on account): Legal entities under public law, authorities, public schools, the Bundeswehr, and other public law institutions and bodies may be granted payment on account after separate examination and express written agreement. In this written individual agreement, the specific payment term (either 14 or 30 days from the invoice date) will be set by the Seller. A cash discount deduction as well as its exact amount and deadline are also only permissible if this was previously expressly and in writing agreed. Without such an express agreement, no cash discount deduction applies and the invoice is due immediately.

(3) Payment methods for online orders: For orders via the online shop, the payment methods indicated in the ordering process are available to the Buyer depending on availability (e.g., advance payment, PayPal, Amazon Pay, installment payment).

(4) Due date and set-off: Unless a different payment term has been expressly agreed in writing, invoices are due immediately.

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

(6) Set-off and Retention: The buyer is only entitled to set-off or retention if their counterclaims have been legally established or are undisputed. For consumers, this does not apply to counterclaims arising from the same contractual relationship (e.g., claims for rectification of defects or reversal of the contract).

§ 11 Design Changes

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

§ 12 Intellectual Property Rights and Patents (B2B)

If the design or construction of a delivery item originates from the Buyer (custom-made), the Buyer shall indemnify the Seller against all third-party claims arising from infringements of intellectual property rights.

§ 13 Limitation of Liability

(1) Unlimited liability: The Seller is liable without limitation for all contractual, quasi-contractual, and statutory claims in accordance with the statutory provisions:

• in case of intent or gross negligence by the legal representatives or senior executives of the Seller,
• in case of culpable injury to life, body, or health,
• in the case of the express assumption of a guarantee for the condition or the presence of a characteristic,
• in case of claims under the Product Liability Act.

(2) Limitation of liability towards entrepreneurs (B2B): Unless otherwise stated in paragraph 1, claims by the entrepreneur-Buyer against the Seller for damages are excluded. This applies in particular to consequential damages, lost profits, business interruption, or other purely financial losses. If the Seller negligently breaches an essential contractual obligation (cardinal obligation), his liability towards entrepreneurs is limited to the contract-typical, reasonably foreseeable damage, up to a maximum amount of 3,000,000 euros per loss event.

(3) Transparency regulation for consumers (B2C): Flat-rate exclusions of liability or rigid limitations of liability to the value of the goods do not apply to consumers. For consumers, the statutory liability regulations apply fully.

(4) Liability of employees and vicarious agents: Insofar as the Seller's liability is excluded or limited, this also applies to the same extent in favor of the personal liability of the Seller's employees, staff, representatives, and vicarious agents.

§ 14 Applicable Law, Place of Jurisdiction, and Severability Clause

(1) Applicable law: The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). For consumers, mandatory provisions of the consumer protection law of the EU member state in which the consumer has his habitual residence (e.g., Austria, France, Belgium, Netherlands, Luxembourg) remain unaffected (Art. 6 Para. 2 Rome I Regulation).

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

(3) Severability clause (partial invalidity): Should a provision of these T&Cs be invalid, the remainder of the contract shall remain valid.