General terms and conditions of business

(Version dated March 26, 2019)

1. Scope
Deliveries and services provided by Smartvac GmbH (hereinafter referred to as Smartvac GmbH) are subject exclusively to the following General Terms and Conditions and the provisions of the currently valid specialist trade price list, unless otherwise agreed in writing. These terms and conditions also apply to all future business relationships, even if they are not expressly agreed upon again. Reference is also made to the manufacturer’s license terms included with the contract products.

Smartvac GmbH does not recognize any conflicting or deviating terms and conditions of the customer unless it has expressly agreed to their validity in writing. Amendments and supplements to the contract must be in writing. These General Terms and Conditions also apply if Smartvac GmbH carries out deliveries to the customer without reservation, even with knowledge of conflicting or deviating terms and conditions of the customer. Promises and supplementary agreements require written confirmation.

2. Deliveries and services
All offers from Smartvac GmbH are non-binding and subject to change without notice. They are contingent upon our suppliers receiving the necessary materials and supplies. A contract is only formed upon written order confirmation, or at the latest, upon acceptance of delivery by the customer.

Smartvac GmbH reserves the right to make reasonable technical and design modifications to specifications in brochures, catalogs, and written documents, as well as changes to models, designs, and materials in the course of technical progress and further development, without giving rise to any claims against Smartvac GmbH. The right to make reasonable partial deliveries and invoice them accordingly is expressly reserved.

The delivery date is agreed upon based on Smartvac GmbH’s anticipated production capacity and is non-binding, subject to timely delivery to us by our suppliers and unforeseen circumstances and obstacles, regardless of whether these occur at Smartvac GmbH or the manufacturer, including but not limited to force majeure, government actions, failure to obtain official permits, labor disputes of any kind, sabotage, raw material shortages, and delays in material deliveries for which Smartvac GmbH is not responsible. Such events will extend the delivery date accordingly, even if they occur during an existing delay. Any grace period set by the customer in this case will also be extended by the duration of the unforeseen event. Should Smartvac GmbH be more than four weeks late with a delivery, the customer may, after setting a reasonable grace period in writing, withdraw from the contract, excluding any further claims. Smartvac GmbH reserves the right to withdraw from the contract if the delivery delay caused by one of the aforementioned events lasts longer than six weeks and is not attributable to Smartvac GmbH.

3. Inspection and transfer of risk
The customer must inspect the goods/work immediately upon receipt for completeness and conformity with the invoice and accept them. If no complaint is made within six days, the goods/work are deemed to have been delivered correctly and completely, unless the defect was not detectable upon inspection. Minor defects that do not impair the functionality of the delivered item do not entitle the customer to refuse acceptance.

4. Prices and payment terms
The purchase price and fees for other services are due upon delivery of the goods. If the customer is in default of payment for any invoice, all other outstanding invoices against the customer may be declared due immediately. In the case of partial performance or partial delivery, Smartvac GmbH is entitled to demand reasonable advance payments. Invoices are issued upon delivery. Checks are accepted only on account of payment. Smartvac GmbH is entitled, notwithstanding any contrary instructions from the customer, to apply payments first to the customer’s older debts. The buyer is only entitled to set-off or exercise a right of retention if the counterclaims have been legally established. Smartvac GmbH has the right to assign its claims against the customer to third parties.

5. Retention of title
The product remains the property of Smartvac GmbH until all claims arising from this contract, including future claims, and from the entire business relationship with the customer have been satisfied. The customer is revocably authorized to resell the goods subject to retention of title in the ordinary course of business, provided that the customer also resells them under their own retention of title, but not to pledge or provide security in any form. In the event of third-party access to the goods subject to retention of title, the customer must inform the third party of Smartvac GmbH’s ownership and notify Smartvac GmbH immediately. If the goods subject to retention of title are combined, processed, or mixed with goods not belonging to Smartvac GmbH, the customer acquires co-ownership in proportion to the ratio of the invoice value of the goods subject to retention of title to the value of the other goods. Processing and transformation of the goods subject to retention of title are carried out for Smartvac GmbH as the manufacturer within the meaning of Section 950 of the German Civil Code (BGB), without creating any obligation for Smartvac GmbH. The customer acquires co-ownership of the processed goods in accordance with the aforementioned provisions.

In the event of default of payment, including for other future deliveries or services from Smartvac GmbH to the customer, or in the event of the customer’s insolvency, Smartvac GmbH may, to enforce its retention of title to the goods subject to retention of title, enter the customer’s business premises and take possession of the goods. The enforcement of the retention of title or the seizure of the delivered goods by Smartvac GmbH shall not be deemed a withdrawal from the contract, provided the customer is a merchant. The customer hereby assigns to Smartvac GmbH in advance, at the time of ordering, all claims arising from the resale of the goods subject to retention of title, up to the respective invoice value of the goods. The customer remains entitled to collect these claims even after the assignment. Notwithstanding this, Smartvac GmbH is entitled to collect these claims in the ordinary course of business, but will only exercise this right in the event of default of payment or if insolvency proceedings are initiated against the customer’s assets. Upon request, the customer shall disclose the assigned claims, provide the necessary information, hand over the relevant documents, and notify the debtors of the assignment. Smartvac GmbH may disclose this assignment at any time to secure its payment claims. Items delivered for testing and demonstration purposes remain the property of Smartvac GmbH. They may only be used by the customer beyond the scope of testing and demonstration purposes by separate agreement with the customer.

6. Warranty
Claims and rights of the buyer due to legal and/or material defects in consumer goods sales are subject to the following limitation periods: for newly manufactured goods and services, after two years (excluding construction work), and for used goods, after one year. No warranties are provided. If the delivered goods are sold not for private use but for commercial or self-employed activity, statutory warranty claims can only be asserted within one year of delivery. In the case of used goods, the warranty is excluded.

If the inspection of a defect report reveals that a warranty claim is not valid, Smartvac GmbH is entitled to reimbursement of all expenses. Inspection and repair costs will be charged at its current service rates. All further or other claims by the customer, regardless of their legal basis, are excluded unless otherwise stipulated in these terms and conditions. When making warranty/guarantee claims, as well as for chargeable repair orders and returns of any kind, the customer must comply with the customer service handling guidelines in their current version or the corresponding procedures in the current dealer price list. Warranty claims are not transferable.

If the manufacturer provides a voluntary warranty to the buyer for the delivered goods, the type and scope of the warranty services are governed exclusively by the terms of the manufacturer’s warranty. Only the manufacturer can be held liable under this warranty.

7. Industrial property rights and copyrights of third parties
Smartvac GmbH assumes no liability for ensuring that the products supplied do not infringe any third-party industrial property rights or copyrights. The customer must immediately inform Smartvac GmbH of any claims asserted against them for this reason. If the delivered products were manufactured according to the customer’s designs or instructions, the customer shall indemnify Smartvac GmbH against all claims asserted by third parties due to the infringement of industrial property rights and copyrights. Any legal costs must be reasonably advanced.

8. Liability and further warranty
In the case of legally mandated strict liability, particularly arising from warranty or under the Product Liability Act, as well as for personal injury (injury to life, body, or health), Smartvac GmbH is liable without limitation. For other breaches of duty, it is liable only for intent and gross negligence. This limitation also applies to employees and agents. If a duty is breached whose fulfillment is of particular importance for achieving the purpose of the contract (cardinal duty), Smartvac GmbH is also liable for slight negligence. However, liability for indirect and unforeseeable damages, as well as for consequential damages and lost profits, lost savings, pecuniary losses due to third-party claims, or other consequential damages, is limited to intent and gross negligence, even in the case of a breach of a cardinal duty. Beyond this, no liability exists.

9. General provisions
The customer is not entitled to assign their claims arising from this contract. The place of performance is Versmold/Westphalia. The place of jurisdiction is Halle/Westphalia if the customer is a merchant, a legal entity under public law, or a special fund under public law. However, Smartvac GmbH is entitled to sue the customer in any other legally permissible jurisdiction. The law of the Federal Republic of Germany applies.

The customer shall bear all fees, costs and expenses incurred in connection with any legally successful legal action against him outside of Germany.

Upon commencement of business relations, customer data, which may also include personal data, will be stored and processed and transmitted to the extent necessary for the execution of the order.

Should one or more provisions of these terms and conditions be or become invalid, or should this contract contain a gap, the contracting parties shall replace or supplement the invalid or incomplete provisions with an appropriate provision that most closely reflects the intended economic purpose. The validity of the remaining provisions shall remain unaffected.