Terms of service
General Terms and Conditions of SMF Solutions GmbH
§ 1 Scope of Application
1. These General Terms and Conditions apply to all business relationships between SMF Solutions GmbH – hereinafter referred to as “SMF” – and the customer, in particular also to all contracts concluded via an online shop operated by SMF or via an online marketplace connected by SMF. The GTC apply regardless of whether the customer is a consumer, entrepreneur, or merchant. The version of the GTC valid at the time the contract is concluded shall apply.
2. Conflicting or deviating provisions of the customer shall not apply unless SMF has expressly agreed to their applicability in writing.
3. Legally relevant declarations and notifications by the customer in relation to the contract (e.g. setting of deadlines, notice of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory form requirements and further evidence requirements, in particular in cases of doubt as to the authority of the declarant, remain unaffected.
§ 2 Conclusion of Contract and Offer
1. Contracts are concluded exclusively with SMF, An den Bleicherkolken 10, 26871 Aschendorf, Register Court: District Court (Amtsgericht) Osnabrück HRB 219887, Managing Directors: Markus Müller, Jens Freerks.
2. For the conclusion of contracts in online shops, the following applies:
a) The presentation and promotion of items in SMF’s online shop or via an online marketplace connected by SMF do not constitute a binding offer to conclude a purchase contract. Orders placed online by the customer (via the “Order with obligation to pay” button) are binding and may be accepted by SMF within two days; the customer’s right of withdrawal pursuant to § 9 – insofar as the customer is a consumer – remains unaffected.
b) The purchase contract with SMF is not concluded by the order confirmation, but only by the dispatch of the order confirmation or availability confirmation by SMF. Delivery or partial delivery of the ordered goods shall be deemed equivalent to the aforementioned confirmation. In the case of payment in advance, the purchase contract is concluded upon dispatch of the payment request.
c) If delivery of the goods ordered by the customer is not possible, for example because the relevant goods are not in stock, SMF shall refrain from accepting the offer. In this case, no contract is concluded. SMF shall inform the customer thereof without delay and shall immediately refund any consideration already received.
3. For all other contracts, the following applies:
a) Offers by SMF are subject to change and non-binding. This also applies if SMF has provided the customer with catalogs, technical documentation (e.g. drawings, plans, calculations, cost estimates, references to DIN standards), other product descriptions or documents – also in electronic form – to which SMF reserves ownership and copyright.
b) The customer’s order of the goods shall be deemed a binding contractual offer. Unless otherwise stated in the order, SMF is entitled to accept this contractual offer within 7 days of its receipt by SMF, unless the order is placed via an online marketplace. In this case, the rules of the respective online marketplace shall apply.
c) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
§ 3 Delivery and Delivery Dates
1. Delays in delivery and performance caused by circumstances beyond SMF’s control that significantly impede or render delivery or performance impossible, such as strikes, lockouts, official orders, epidemics/pandemics, are not the responsibility of SMF, even in the case of bindingly agreed deadlines. This also applies if such circumstances occur at suppliers or their subcontractors. In such cases, the agreed deadlines and dates shall be extended appropriately. SMF shall inform the customer of the occurrence and duration of such obstacles as soon as possible.
2. Delivery of the goods shall be carried out by SMF or by a transport company commissioned by SMF. The goods are insured by SMF against loss and damage if the customer is a consumer. Any waiver of insurance must be communicated to SMF in writing. In this case, the customer shall bear the risk of deterioration or loss of the goods.
3. The customer who is a consumer within the meaning of § 13 BGB is requested to immediately notify the delivery agent (freight forwarder/postman) of any externally visible transport damage and to have this confirmed. Failure to make such notification, however, has no consequences for the customer’s statutory claims (cf. §§ 5, 6 of these GTC).
4. If there are justified indications of a risk of non-payment, SMF reserves the right to deliver only after receipt of the purchase price including shipping costs (reservation of advance payment). If SMF makes use of this reservation, SMF shall inform the customer without delay. In this case, the delivery period shall commence upon payment of the purchase price and shipping costs.
§ 4 Prices, Set-Off
1. Unless otherwise stated, prices are inclusive of statutory value-added tax and exclusive of packaging and transport.
2.
a) For SMF online shops:
Shipping costs are stated in the price information of the online shop. The price, including VAT if applicable, and any shipping costs incurred are also displayed in the order form before the customer submits the order.
b) For all other contracts:
Unless otherwise agreed in individual cases, the prices valid at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT.
3.
a) The customer is not entitled to offset claims against claims of SMF unless the counterclaims have been legally established or are undisputed. The customer is also entitled to offset claims against SMF if he asserts defect claims or counterclaims arising from the same purchase contract.
b) As a buyer, the customer may exercise a right of retention only if the counterclaim arises from the same purchase contract.
§ 5 Warranty
1. SMF is liable for material or legal defects of delivered items in accordance with the applicable statutory provisions, in particular §§ 434 et seq. BGB and – if applicable – §§ 327 et seq. BGB as well as §§ 475a et seq. BGB.
2. With respect to entrepreneurs/merchants, the following provisions apply:
(a) If the customer is an entrepreneur/merchant, he is obliged to inspect the goods immediately upon receipt for obvious defects and, if a defect becomes apparent, to notify SMF immediately. § 377 HGB applies in this respect. Non-obvious defects must be reported in writing immediately upon discovery. If the customer fails to properly inspect and/or notify defects, SMF’s liability for the defect not reported, not reported in time, or not properly reported shall be excluded in accordance with statutory provisions.
(b) If the customer identifies a defect in the goods and a warranty case exists, SMF is entitled to remedy the defect free of charge or to deliver replacement goods. If SMF is unwilling or unable to remedy the defect or deliver replacement goods, or if three attempts at rectification fail in total, the customer is entitled to withdraw from the purchase contract or reduce the purchase price.
(c) If it turns out upon examination of the defect notice that no warranty case exists, SMF is entitled to charge the customer for the expenses incurred as a result.
(d) In the case of used goods, the goods are sold excluding liability for material defects. This exclusion does not apply to claims for damages arising from liability for material defects that are based on gross negligence or intentional breach of duty by SMF or its vicarious agents, nor in cases of injury to life, body, or health.
§ 6 Retention of Title vis-à-vis Consumers
1. SMF retains title to the delivered goods until full payment of all claims arising from the delivery contract.
2. In the event of seizures or other interventions by third parties, the customer must inform the third party of SMF’s rights to the purchased item and notify SMF immediately. If the customer breaches this obligation, he shall be liable for the resulting damage. The customer is not entitled to pledge items delivered under retention of title.
§ 7 Retention of Title vis-à-vis Entrepreneurs/Merchants
1. SMF retains title to the sold goods until full payment of all present and future claims of SMF arising from the purchase contract and an ongoing business relationship (secured claims).
2. Goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must notify SMF immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties gain access (e.g. seizures) to the goods belonging to SMF.
3. In the event of contractual breach by the customer, in particular non-payment of the due purchase price, SMF is entitled to withdraw from the contract in accordance with statutory provisions and/or to demand surrender of the goods on the basis of the retention of title. The demand for surrender does not simultaneously constitute a declaration of withdrawal; rather, SMF is entitled merely to demand surrender of the goods while reserving the right to withdraw. If the customer fails to pay the due purchase price, SMF may only assert these rights if SMF has previously unsuccessfully set the customer a reasonable deadline for payment or if setting such a deadline is dispensable under statutory provisions.
4. Until revocation in accordance with subsection (c) below, the customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following supplementary provisions apply:
(a) The retention of title extends to the products resulting from processing, mixing, or combining the goods of SMF at their full value, whereby SMF is deemed to be the manufacturer. If, in the event of processing, mixing, or combining with goods of third parties, their ownership rights remain, SMF acquires co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(b) The customer hereby assigns to SMF, as security, in full or in the amount of any co-ownership share of SMF pursuant to the preceding paragraph, the claims against third parties arising from the resale of the goods or the product. SMF accepts the assignment. The obligations of the customer mentioned in paragraph 2 also apply with regard to the assigned claims.
(c) The customer remains authorized to collect the claim alongside SMF. SMF undertakes not to collect the claim as long as the customer meets his payment obligations to SMF, there is no deficiency in his ability to perform, and SMF does not assert the retention of title by exercising a right pursuant to paragraph 3. If this is the case, however, SMF may require the customer to disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. Furthermore, in this case, SMF is entitled to revoke the customer’s authority to further resell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds the claims of SMF by more than 10%, SMF shall release securities of its choice at the customer’s request.
§ 8 Data Protection
All data transmitted by the customer shall be collected and processed by SMF in compliance with the applicable data protection regulations. Further information can be found in the data protection notices on SMF’s websites.
§ 9 Right of Withdrawal for Consumers
Withdrawal Instruction
Consumers have a fourteen-day right of withdrawal.
Right of Withdrawal
You have the right to withdraw from this contract within fourteen days without giving any reason.
The withdrawal period is fourteen days from the day on which you or a third party named by you who is not the carrier has taken possession of the goods.
In the case of a contract for multiple goods that you have ordered as part of a single order and that are delivered separately, the withdrawal period begins on the day on which you or a third party named by you who is not the carrier has taken possession of the last good.
To exercise your right of withdrawal, you must inform us (SMF Solutions GmbH, An den Bleicherkolken 10, 26871 Aschendorf, info@smf-solutions.de, telephone: (0 4962 99995-0)) of your decision to withdraw from this contract by means of a clear statement (e.g. a letter sent by post, fax, or e-mail). You may use the model withdrawal form, but this is not mandatory. You may also use our withdrawal form on our website and submit it electronically. If you make use of this option, we will immediately send you a confirmation of receipt of such withdrawal (e.g. by e-mail). To meet the withdrawal deadline, it is sufficient for you to send your notification of exercising the right of withdrawal before the withdrawal period expires.
Consequences of Withdrawal
If you withdraw from this contract, we shall reimburse you all payments received from you, including delivery costs (with the exception of additional costs resulting from your choice of a type of delivery other than the least expensive standard delivery offered by us), without delay and at the latest within fourteen days from the day on which the returned goods have been received by us.
For goods that can be sent by parcel: You will receive a free return label from us by e-mail and can use it to return the goods to us. Please send the goods unused, in their original packaging, and protected against breakage.
Products that are shipped at the standard rate but are not suitable for parcel shipping due to their nature (overlength items or bulky goods such as trolleys or furniture, etc.) will be collected from you. The costs of this collection are to be borne by you. For a trolley, the cost of collection (mainland only) amounts to EUR 35 (incl. VAT), and for freight goods (mainland only) to EUR 79 (per pallet incl. VAT). Unpaid shipments will generally not be accepted.
For reimbursement, we will use the same means of payment that you used for the original transaction. Under no circumstances will you be charged fees for this reimbursement. We may refuse reimbursement until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.
Special Notes
If you finance this contract through a loan and later withdraw from it, you are no longer bound by the loan agreement either, provided both contracts form an economic unit. This is particularly the case if we are also your lender or if your lender makes use of our involvement with regard to the financing. If the loan has already been paid to us at the time the withdrawal becomes effective or upon return of the goods, your lender shall enter into our rights and obligations arising from the financed contract with respect to you regarding the legal consequences of the withdrawal or return. The latter does not apply if the present contract concerns the acquisition of financial instruments (e.g. securities, foreign exchange, or derivatives). If you wish to avoid contractual obligations as far as possible, make use of your right of withdrawal and also withdraw from the loan agreement if you are entitled to a right of withdrawal in this respect as well.
End of the Withdrawal Instruction
Exceptions to the Right of Withdrawal
The above-mentioned right of withdrawal does not apply to contracts for the delivery of goods that are not prefabricated and for the manufacture of which an individual selection or determination by the consumer is decisive or that are clearly tailored to the personal needs of the consumer.
Model Withdrawal Form
(If you wish to withdraw from the contract, please complete this information and return it to us.)
To:
SMF Solutions GmbH, An den Bleicherkolken 10, 26871 Aschendorf
E-mail: info@smf-solutions.de
I/We () hereby withdraw from the contract concluded by me/us () for the purchase of the following goods ()/the provision of the following service ()
Ordered on ()/received on ()
Name of consumer(s)
Address of consumer(s)
Signature of consumer(s) (only if notification is on paper)
Date
___________________________
(*) Delete as applicable
§ 10 Payment
1. All claims become due upon invoicing. They are payable without deduction unless otherwise agreed. Invoicing generally takes place upon delivery of the goods.
2. If the customer is a consumer within the meaning of § 13 BGB, payment shall be made – as a rule, insofar as possible in the respective online shop and/or online marketplace – either by cash on delivery, advance payment, invoice, PayPal, credit card, or EC card payment upon collection. In the case of payment by direct debit (PayPal or credit card), the account will be charged upon completion of the order. In the case of purchase on account, the invoice amount – unless otherwise agreed – is payable within 8 days of receipt of the invoice. The customer shall automatically be in default if payment is not made within 14 days of receipt of the invoice, without the need for a further reminder by SMF.
If the customer is a merchant/entrepreneur, payment shall be made as agreed.
3. If the customer is in default of payment, SMF is entitled to charge default interest at a rate of 5%, and for merchants at a rate of 9%, above the base interest rate of the European Central Bank, unless the customer proves a lesser damage or SMF proves a greater damage.
4. If the customer owes SMF several payments, SMF is entitled, notwithstanding any contrary provisions on allocation by the customer, to first offset the due debt, and among several due debts, the oldest debt.
§ 11 Liability
1. SMF shall be liable to the customer in all cases of contractual and non-contractual liability for intent and gross negligence in accordance with statutory provisions for damages or reimbursement of futile expenses.
2. In other cases, SMF shall be liable – unless otherwise provided in paragraph 3 – only in the event of a breach of a contractual obligation whose fulfillment is essential for the proper performance of the contract and on whose compliance the customer may regularly rely (so-called cardinal obligation), and then limited to compensation for the foreseeable and typical damage. In all other cases, SMF’s liability is excluded subject to the provision in paragraph 3.
3. SMF’s liability for damages arising from injury to life, body, or health and under the Product Liability Act remains unaffected by the above limitations and exclusions of liability.
§ 12 Limitation Period vis-à-vis Entrepreneurs/Merchants
1. Deviating from § 438 (1) No. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.
2. The above limitation periods of sales law also apply to contractual and non-contractual claims for damages by the customer that are based on a defect in the goods, unless application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the customer pursuant to § 11 (3) are subject exclusively to the statutory limitation periods.
§ 13 Severability Clause
If a provision of these Terms and Conditions is or becomes wholly or partially invalid, this shall not affect the validity of the remaining provisions or of these Terms and Conditions as a whole.
§ 14 Place of Jurisdiction, Place of Performance, Applicable Law, Contract Language, and Dispute Resolution
1. If the customer is a merchant, the place of jurisdiction shall be the District Court (Amtsgericht) in Steinfurt. This does not exclude legal action by SMF at the customer’s place of residence.
2. The place of performance shall be Aschendorf, provided the customer is a merchant and the order confirmation does not state otherwise.
3. For private end consumers who have their residence outside the European Union, the place of jurisdiction shall be the District Court in Steinfurt. For private end consumers within the European Union, the law at the consumer’s place of residence may apply if mandatory consumer protection provisions are involved.
4. The contract language is German.