General Terms and Conditions of SWM Maschinen GmbH in 74821 Mosbach

§ 1 Applicability of the Terms and Conditions

(1) These General Terms and Conditions (hereinafter “GTC”) of SWM Maschinen GmbH (hereinafter “Seller”) apply to all contracts for the delivery of goods that a consumer or business (hereinafter “Buyer”) enters into with the Seller by telephone, fax, email, 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 countries (Belgium, the Netherlands, Luxembourg), and the French Republic (France).

(3) Exclusion Clause (Exclusion of Third-Party Terms and Conditions of Purchase): Any conflicting, deviating, or supplementary terms and 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, despite being aware of conflicting or deviating terms and conditions of the Buyer, carries out the delivery to the Buyer without reservation or does not expressly object to such terms and conditions again after receiving them.

(4) A “consumer” within the meaning of these General Terms and Conditions is any natural person who enters into a legal transaction for purposes that are predominantly neither related to their commercial nor to their self-employed professional activity (Section 13 of the German Civil Code (BGB); § 1(1)(2) of the Austrian Consumer Protection Act (KSchG) and corresponding regulations of EU consumer law).

(5) A “business operator” within the meaning of these General Terms and Conditions is a natural or legal person, or a partnership with legal capacity, that acts in the course of its commercial or self-employed professional activity when entering into a legal transaction (Section 14 of the German Civil Code (BGB); § 1(1)(1) of the Austrian Commercial Code (UGB) and corresponding international trade regulations). Sole proprietors, freelancers, and partnerships (e.g., GbR, OHG, KG) acting for commercial purposes are fully covered by the definition of “business operator.”

(6) Supplement for Future Business Relationships with Business Entities (B2B): With respect to business entities, these General Terms and Conditions, in their current version, shall serve as a framework agreement for all future contracts regarding the sale and/or delivery of movable property with the same buyer, without the seller being required to refer to them again in each individual case.

§ 2 Offer and Conclusion of Contract

(1) The product descriptions and price information contained in catalogs, written offers, price lists, the online store, and other media of the Seller do not constitute binding offers on the part of the Seller, but are intended to invite the Buyer to make a binding offer (invitatio ad offerendum), provided that an offer by the Seller is not expressly designated as binding in writing.

(2) The buyer may submit the offer via the online order form integrated into the seller’s online store, as well as by telephone, fax, email, letter, or contact form. After completing the electronic ordering process in the online store, the buyer submits a legally binding contractual offer regarding the goods contained in the shopping cart by clicking the button that finalizes the ordering process.

(3) The seller may accept the buyer’s offer within five days:

• by sending a written order confirmation or an order confirmation in text form (fax, email, or letter),
• by delivering the ordered goods to the buyer, or
• by requesting payment from the buyer after the buyer has placed the order.

If several of the aforementioned alternatives occur, the contract is concluded at the time the first of these alternatives takes place. The period for accepting the offer begins on the day after the buyer sends the offer and ends at the close of the fifth day following the sending 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 contract is concluded and sent to the buyer in writing (e.g., by email) after the buyer submits their order.

(5) The contract may be concluded in either German or English.

(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. The Seller reserves the right to make deviations that are customary in the trade or technologically unavoidable, 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 the Seller’s offer, the prices listed are total prices that include the statutory value-added tax. Any additional delivery and shipping costs, if applicable, are listed separately in the respective product description or in the offer.

(2) Prices for Business Customers (B2B): For deliveries to business customers, unless otherwise agreed, prices are exclusive of statutory value-added tax and ex-warehouse Mosbach (EXW according to Incoterms 2020).

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

§ 4 Delivery and Performance Times

(1) Delivery dates or delivery periods, whether agreed upon as binding or non-binding, must be in writing.

(2) Force Majeure and Disruptions to the Seller’s Own Supply (B2B): Delays in delivery and performance due to force majeure and due to events that significantly impede or render delivery impossible for the Seller—not merely temporarily—including, in particular, strikes, lockouts, official orders, etc.—even if they occur at the Seller’s suppliers or their subcontractors—are beyond the Seller’s control, even in the case of bindingly agreed deadlines and dates. Such circumstances entitle the Seller to postpone the delivery or service by the duration of the hindrance plus a reasonable start-up period, or to withdraw from the contract in whole or in part with respect to the unfulfilled portion. The Seller shall immediately inform the Buyer of the occurrence of such circumstances and their anticipated effects.

(3) Prolonged Hindrance and Damages: If the hindrance as defined in paragraph 2 lasts longer than three months, the buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with respect to the unfulfilled portion. If the delivery period is extended or if the seller is released from its delivery obligation, the buyer may not assert any claims for damages against the seller arising therefrom, provided that the seller has notified the buyer without delay. In all other respects, the provisions of § 13 apply to claims for damages.

(4) Consumer Protection Notice (B2C): The limitations of liability and extensions of time limits set forth in paragraphs 2 and 3 apply to consumers only to the extent permitted by law.

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

(6) Buyer’s Obligations to Cooperate: The seller’s compliance with its delivery and performance obligations is contingent upon the buyer’s timely and proper fulfillment of its obligations (e.g., provision of necessary documents, granting of approvals, agreed-upon down payments).

(7) Default in Acceptance: If the buyer is in default of acceptance or culpably breaches other obligations to cooperate, the seller is entitled to demand compensation for the damages incurred, including any additional expenses (e.g., storage costs). Upon the occurrence of default in acceptance, the risk of accidental deterioration and accidental loss of the goods shall pass to the buyer.

§ 5 Right of Withdrawal

(1) Consumers residing in the European Union are entitled to a statutory right of withdrawal for contracts concluded through distance selling (e.g., orders placed by email, telephone, fax, mail, or through an online store).

(2) The specific provisions and exceptions to the right of withdrawal are governed by the Seller’s separate withdrawal policy.

(3) Exercising the right of withdrawal: In addition to the methods specified in the notice of withdrawal, consumers may exercise their right of withdrawal by means of an unambiguous declaration (e.g., a letter sent by mail, fax, or email). For orders placed through the online store, the right of withdrawal may also be exercised by clicking the button provided there (“Withdraw from the Contract”).

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

§ 6 Delivery Terms, Failed Delivery, and Delivery Notification

(1) Goods are shipped to the delivery address specified by the buyer, unless otherwise agreed. For shipments via a freight forwarder, delivery is “curbside,” unless otherwise specified in the shipping information.

(2) Costs in the Event of Failed Delivery and Second Delivery: If delivery of the goods fails for reasons attributable to the buyer—in particular if the buyer is not present at the agreed delivery date despite prior notification (delivery notification by the carrier)—the buyer shall bear the reasonable additional expenses incurred by the seller as a result (e.g., fees for a second delivery, waiting time, or return shipping costs). This does not apply to the original shipping costs for consumers if they effectively exercise their right of withdrawal.

(3) Reservation of the right to withdraw from the contract due to failure of supply to the seller (B2B): The seller reserves the right to withdraw from the contract in the event of incorrect or improper supply to the seller. This applies only if the seller is not responsible for the non-delivery and has entered into a specific offsetting transaction with the supplier with due care. In the event of unavailability, the business customer will be informed immediately, and any payments received will be refunded without delay.

(4) Special Provision for Consumers (B2C): The above reservation regarding the supplier’s delivery does not apply to consumers. The Seller assumes the procurement risk vis-à-vis consumers within the scope of statutory regulations.

§ 7 Transfer of Risk

(1) With respect to consumers (B2C): The risk of accidental loss and accidental deterioration of the goods sold in deliveries to consumers (within the EU, specifically DE, AT, FR, Benelux) passes only upon delivery of the goods to the consumer or to a recipient designated by the consumer. This applies regardless of whether the shipment is insured or not.

(2) With respect to businesses (B2B): The risk of accidental loss and accidental deterioration passes to the business customer as soon as the seller has delivered the goods to the forwarding agent, the carrier, or any other person or entity designated to carry out the shipment (EXW Mosbach).

§ 8 Warranty / Liability for Defects

(1) Quality of the Goods and Customer Specifications: The quality of the goods is governed exclusively by the agreed-upon technical delivery specifications. If the seller is required to deliver goods based on the buyer’s drawings, specifications, samples, etc., 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 material defects resulting from unsuitable or improper use, faulty assembly or commissioning by the buyer or third parties, normal wear and tear, or improper or negligent handling, the Seller shall not be liable, nor shall the Seller be liable for the consequences of improper modifications or repair work carried out by the Buyer or third parties without the Seller’s consent.

(3) Claims by Consumers (B2C): For consumers, the statutory provisions regarding liability for defects of the respective EU country of residence and applicable EU law apply. Notwithstanding this, the following applies:

• Shipping Damage (B2C): Consumers are requested to file a claim with the delivery service regarding goods delivered with obvious shipping damage and to notify the seller of this. Failure by the consumer to do so shall have no effect on their statutory claims for defects.
• Right to Repair (EU Right to Repair): If, in the event of a material defect within the statutory warranty period, the consumer opts for the defect to be remedied through repair (rectification) and the seller successfully carries out this repair, the statute of limitations for the repaired defect is extended by the period prescribed by law.

(4) Special Regulations for Business Customers (B2B): If the buyer is acting as a business customer, the following regulations apply instead:

• Choice of Remedial Action & Limitation Period: The seller may choose the type of remedial action (rectification of the defect or replacement delivery). For new goods, the limitation period for claims for defects is one year from delivery of the goods; for used goods, claims for defects are excluded.
• Commercial Duty to Inspect and Give Notice of Defects (§ 377 HGB / § 377 UGB): If the buyer is a merchant, the delivered goods must be inspected immediately upon receipt. Obvious defects must be reported to the seller in writing within 8 business days of delivery, specifying the nature and extent of the defect as well as the invoice number. Hidden defects must be reported in writing immediately, no later than 2 business days after their discovery. If the buyer fails to file a complaint within the prescribed time or files it late, the delivered goods shall be deemed accepted with regard to the defect in question; the buyer forfeits all warranty, rectification, rescission, and damage claims relating to this defect.
• Exclusion in Case of Acceptance/Initial Sample Inspection: If acceptance of the goods or an initial sample inspection has been agreed upon, claims for defects that the buyer could have detected during a careful acceptance inspection or initial sample inspection are excluded.

(5) Opportunity to Inspect and Obligations to Cooperate (B2B): The business must provide the seller with the necessary time and opportunity to verify the reported defect. Goods subject to a complaint must be returned to the seller immediately upon the seller’s request. The seller shall bear the shipping costs only if the complaint is justified.

(6) Statutory Rights of Recourse (B2B): The buyer’s statutory rights of recourse against the seller exist only to the extent that the buyer has not entered into any agreements with its customer that go beyond the statutory claims for defects.

§ 9 Retention of Title

(1) With respect to consumers (B2C): The delivered goods remain the property of the seller until the purchase price has been paid in full.

(2) With respect to businesses (B2B) – Extended and prolonged retention of title:

• The goods remain the property of the seller until all claims (including all balance claims from a running account) to which the seller is entitled arising from the business relationship have been satisfied.
• The buyer is entitled to process and sell the goods subject to retention of title in the ordinary course of business, provided the buyer is not in default. Pledging or transfer of ownership by way of security is not permitted. The buyer hereby assigns to the seller, by way of security, all claims arising from the resale of the goods subject to retention of title in their entirety. The seller revocably authorizes the buyer to collect the claims assigned to the seller in the buyer’s own name.
• In the event of third-party claims against the goods subject to retention of title (e.g., attachments), the buyer shall indicate the seller’s ownership and notify the seller immediately.

§ 10 Payment, Payment Methods, and Default on Payment

(1) Principle of Advance Payment for Direct Orders: For orders received by telephone, fax, email, or mail, delivery shall generally be made only against advance payment (payment in advance via bank transfer), unless the parties have expressly agreed otherwise in writing in individual cases.

(2) Special provision for public-sector clients (purchase on account): Legal entities under public law, government agencies, public schools, the German Armed Forces, and other public-law institutions and bodies may be granted payment on account following a separate review and an express written agreement. In this separate written agreement, the seller shall specify the specific payment term (either 14 or 30 days from the invoice date). A discount, as well as its exact amount and deadline, is also permitted only if this has been expressly agreed upon in writing in advance. Without such an express agreement, no discount applies and the invoice is due immediately.

(3) Payment Methods for Online Orders: For orders placed through the online store, the buyer may use the payment methods specified during the ordering process, subject to availability (e.g., prepayment, PayPal, Amazon Pay, installment payments).

(4) Due Date and Offset: Unless a different payment term has been expressly agreed upon in writing, invoices are due immediately.

(5) Late Payment: If the buyer defaults on payment, the seller is entitled to charge late-payment interest at a rate of 9 percentage points above the base interest rate for business-to-business (B2B) transactions and 5 percentage points above the base interest rate for business-to-consumer (B2C) transactions.

(6) Set-off and Retention: The buyer is only entitled to set off or withhold payment if their counterclaims have been legally established or are undisputed.

§ 11 Design Changes

The seller reserves the right to make design or form changes customary in the trade at any time, provided that such changes do not impair the functionality or value of the delivered item.

§ 12 Intellectual Property Rights and Patents (B2B)

If the design or construction of a delivered item originates from the buyer (custom-made product), 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 shall be fully liable for all contractual, quasi-contractual, and statutory claims in accordance with statutory provisions:

• in cases of willful misconduct or gross negligence on the part of the seller’s legal representatives or executive officers,
• in the event of culpable injury to life, body, or health,
• in the event of an express warranty regarding the quality or the existence of a particular characteristic,
• in the case of claims under the Product Liability Act.

(2) Limitation of Liability Toward Business Entities (B2B): Unless otherwise provided in paragraph 1, claims for damages by a business buyer against the seller are excluded. This applies in particular to consequential damages, lost profits, business interruption, or other purely financial losses. If the seller negligently breaches a material contractual obligation (cardinal obligation), the seller’s liability toward business customers is limited to the reasonably foreseeable damages typical for this type of contract.

(3) Transparency Provision for Consumers (B2C): Flat-rate exclusions of liability or rigid limitations of liability to the value of the goods do not apply to consumers. The statutory liability provisions apply to consumers without restriction.

(4) Liability of Employees and Agents: To the extent that the seller’s liability is excluded or limited, this also applies to the same extent to the personal liability of the seller’s employees, staff, representatives, and agents.

§ 14 Governing Law, Jurisdiction, and Severability Clause

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

(2) Jurisdiction: The exclusive place of jurisdiction for merchants/businesses (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 any regulation of these General Terms and Conditions be invalid, the remainder of the contract shall remain valid.