GENERAL TERMS AND CONDITIONS OF SMS sign media solutions GmbH – Nelly-Sachs-Strasse 53 – 40764 Langenfeld

§ 1 General – Scope of Application

(1) Our terms and conditions apply exclusively; we do not accept any contradictory or deviating terms of the customer unless we have explicitly agreed to their applicability in writing. Our terms and conditions also apply even if we perform the delivery to the customer without objection, knowing of contradictory or deviating conditions of the customer.
(2) All agreements made between us and the customer for the execution of this contract are laid down in writing in this contract.
(3) Our terms and conditions apply only to businesses within the meaning of § 14 of the German Civil Code (“BGB”).
(4) Our terms and conditions also apply to all future business transactions with the customer.

§ 2 Offer – Offer Documents
(1) If the customer’s order qualifies as an offer under § 145 BGB, we may accept it within two weeks.
(2) We reserve ownership and copyright over illustrations, drawings, calculations, and other documents. This also applies to documents marked as “confidential.” Before disclosing them to third parties, the customer must obtain our explicit written consent.
(3) Information about the subject of delivery or service (e.g., weights, dimensions, performance values, tolerances, quality, technical data) as well as our representations of the same (e.g., drawings and illustrations) are only approximate, unless exact conformity is required for the contractual purpose. Unless explicitly agreed otherwise, these details do not constitute guarantees or assurances of properties, quality, durability, or other warranties, but are merely descriptions or labels for the delivery or service.
(4) Commercial deviations and deviations that are required due to legal regulations or represent technical improvements, as well as the use of equivalent other manufacturing forms or materials, are permitted without inquiry to the customer, provided the usability for the contractual purpose is not impaired.
(5) The above also applies to specifications in our catalogs, brochures, advertisements, or notices regarding dimensions, weights, quality, durability, performance values, shipping weights, and similar specifications, unless they are material specifications; the information in the order confirmation takes precedence.

§ 3 Prices – Payment Terms
(1) Unless otherwise specified in the order confirmation, our prices are “ex works,” excluding packaging; packaging will be invoiced separately.
(2) The statutory VAT is not included in our prices; it will be shown separately in the invoice at the applicable rate on the date of invoicing.
(3) Discounts require a special written agreement.
(4) Unless otherwise specified in the order confirmation, the purchase price is due for payment within 30 days from the invoice date, net (without deduction). The statutory rules on the consequences of late payment apply.
(5) The customer is only entitled to offset or withhold payments if their counterclaims have been legally established, are undisputed, or have been recognized by us. Additionally, the customer is entitled to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.

§ 4 Delivery Time
(1) Delivery deadlines and dates are always approximate unless a fixed delivery deadline or fixed delivery date has been agreed. If a delivery deadline is agreed, it begins with the date of the order confirmation, but not before the customer provides the documents (e.g., details, drawings, approvals, samples, models) to be obtained by the customer and any releases or clarifications of technical questions.
(2) Compliance with our delivery obligations further requires the timely and proper fulfillment of the customer’s obligations. The defense of non-performance of the contract remains reserved.
(3) If the customer is in default of acceptance or otherwise fails to fulfill their cooperation obligations, we are entitled to claim compensation for the damage incurred, including any additional expenses. Further claims or rights remain reserved.
(4) If the conditions in paragraph (3) are met, the risk of accidental destruction or deterioration of the delivery or service we are to provide passes to the customer when they are in default of acceptance or debtor’s delay.
(5) If we are in default of delivery, the customer is generally obligated to set us an appropriate grace period for performance. If the grace period expires without performance, the customer is entitled to withdraw from the contract. If the customer can assert that their interest in further contract fulfillment has ceased due to our delayed delivery, they can withdraw from the contract without setting a grace period by immediately notifying us in writing. In case of partial delay, the customer may only withdraw from the entire contract if they have a legitimate interest in rejecting the partial delivery. Otherwise, the customer may reduce the price accordingly.
(6) In cases of force majeure and other disruptive events that were unforeseeable at the time of the contract conclusion (e.g., operational disruptions of any kind, transportation delays, strikes, lawful lockouts, official measures, difficulties in material or energy procurement, adverse weather conditions, as well as failure to supply, incorrect or delayed supply by our suppliers), which are beyond our control and which substantially hinder or make delivery and performance impossible, we are entitled to withdraw from the contract, provided the disruptive event is not only temporary, and we have not expressly assumed a procurement risk. In the event of withdrawal, any performances already provided must be promptly returned. Section 275 (2) BGB remains unaffected.
(7) In the event of temporary disruptive events, even within a delivery delay, the delivery period or delivery date shall be extended by the duration of the disruption, plus a reasonable start-up period.
(8) We will inform the customer of the occurrence of a disruptive event without delay. The customer may request us to inform them whether we intend to deliver within an appropriate period or withdraw from the contract.
(9) If, in cases of paragraph (6), the customer cannot reasonably accept the delivery due to a delay of more than one month, they may withdraw from the contract by immediately notifying us in writing.
(10) We are liable according to the statutory provisions if the underlying purchase contract is a fixed-date transaction within the meaning of § 286 (2) No. 4 BGB or § 376 of the Commercial Code (“HGB”).
(11) We are also liable for damages according to statutory provisions if the delivery delay is based on an intentional or grossly negligent breach of contract for which we are responsible; the fault of our representatives or agents is attributed to us. If the delivery delay is based on a grossly negligent breach of contract for which we are responsible, our liability for damages is limited to the foreseeable, typical damage.
(12) We are also liable for damages according to statutory provisions if the delivery delay is based on a breach of an essential contractual obligation for which we are responsible; in this case, however, the liability for damages is limited to the foreseeable, typical damage.
(13) Claims for damages are excluded in the cases of paragraph (6).

§ 5 Transfer of Risk – Packaging Costs
(1) Unless otherwise specified in the order confirmation, delivery is agreed as “ex works.”
(2) Separate agreements apply for the return of packaging.
(3) If the customer wishes, we will cover the delivery with transport insurance; the costs incurred will be borne by the customer.
(4) We are entitled to make partial deliveries and early deliveries to a reasonable extent.

§ 6 Defect Liability
(1) Claims for defects by the customer require that they have duly fulfilled their inspection and complaint obligations according to § 377 HGB.
(2) If there is a defect in the purchased item, we are entitled, at our discretion, to remedy the defect by either repairing it or delivering a new defect-free item. In the case of defect rectification or replacement delivery, we are obligated to bear all costs necessary for the remedy, particularly transportation, travel, labor, and material costs, up to the amount of the purchase price, unless these costs increase because the purchased item was moved to a place other than the place of performance.
(3) If the remedy fails, the customer is entitled to request a reduction in price or a withdrawal from the contract at their discretion.
(4) We are liable according to statutory provisions if the customer asserts damage claims based on intent or gross negligence, including intent or gross negligence by our representatives or agents. If no intentional contract breach is attributed to us, the liability for damages is limited to the foreseeable, typical damage.
(5) We are liable according to statutory provisions if we negligently breach an essential contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typical damage. Paragraph (7) remains unaffected.
(6) If the customer is entitled to compensation for damages instead of performance due to a negligent breach of duty, our liability is limited to the foreseeable, typical damage. Paragraph (7) remains unaffected.
(7) If we are liable, this liability, even for a breach of material contractual obligations, is excluded:
(i) If the risk causing the damage is typically covered by the customer’s insurance or if the customer has taken out industry-standard property insurance for the damaged goods;
(ii) For claims for damages in addition to or instead of performance, to the extent that claims for indirect or consequential damages are asserted;
(iii) For damages that can be controlled by the customer. These exclusions do not apply in the case of liability for gross negligence or intent by our organs, legal representatives, or senior employees, or if we have insurance coverage through product liability or general liability insurance.
(8) Liability for negligent injury to life, body, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(9) Unless otherwise stated above, liability is excluded.
(10) The limitation period for defect claims is 12 months from the transfer of risk. This does not apply if the purchased item is typically used for construction and caused the defect.
(11) The limitation period for claims under delivery recourse according to §§ 478, 479 BGB remains unaffected; it is five years, starting from the delivery of the defective item.

§ 7 Overall Liability
(1) Any further liability for damages beyond what is provided in § 6 is excluded, regardless of the legal nature of the asserted claim. This applies particularly to claims for damages due to fault at the conclusion of the contract, due to other breaches of duty, or due to tortious claims for compensation of property damages according to § 823 BGB.
(2) The limitation according to paragraph (1) also applies if the customer demands compensation for unnecessary expenses instead of damages.
(3) If liability for damages is excluded or limited, this also applies to the personal liability of our employees, workers, agents, and subcontractors.

§ 8 Retention of Title
(1) We retain ownership of the purchased item until all payments arising from the business relationship with the customer have been received. In case of the customer’s breach of contract, particularly in case of payment default, we are entitled to take back the purchased item. The return of the purchased item by us constitutes a withdrawal from the contract. After the return of the purchased item, we are entitled to dispose of it; the proceeds from the disposal will be credited against the customer’s liabilities, minus reasonable disposal costs.
(2) The customer is obligated to handle the purchased item with care; in particular, they must insure it against fire, water, and theft damage at replacement value at their own expense. If maintenance and inspection work is required, the customer must carry it out at their own cost in a timely manner.
(3) In the case of seizures or other third-party interventions, the customer must immediately notify us in writing so we can file a claim under § 771 of the Civil Procedure Code (“ZPO”). If the third party is not able to reimburse the court and out-of-court costs of the lawsuit, the customer is liable for the loss incurred by us.
(4) The customer is entitled to resell the purchased item in the ordinary course of business; however, they already assign to us all claims arising from the resale against their buyers or third parties, up to the invoice amount (including VAT), regardless of whether the purchased item is sold with or without processing. The customer remains authorized to collect these claims even after assignment. Our right to collect the claims remains unaffected. However, we undertake not to collect the claim as long as the customer fulfills their payment obligations from the proceeds received, does not fall into payment default, and no application for insolvency or settlement proceedings has been filed or a suspension of payments has occurred. If this is the case, we may demand that the customer notify us of the assigned claims and their debtors, provide all necessary information for collection, hand over the related documents, and notify the debtors (third parties) of the assignment.
(5) The processing or transformation of the purchased item by the customer is always for us. If the purchased item is processed with other items that do not belong to us, we acquire co-ownership of the new item in proportion to the value of the purchased item (invoice amount including VAT) to the other processed items at the time of processing. The same applies to the item resulting from processing as for the delivered item under retention of title.
(6) If the purchased item is inseparably mixed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the purchased item (invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing occurs in such a way that the customer’s item is considered the main item, it is agreed that the customer transfers to us a proportionate co-ownership. The customer shall keep the sole ownership or co-ownership for us.
(7) The customer also assigns to us the claims to secure our claims against them that arise from the connection of the purchased item with real property against a third party.
(8) We undertake to release the securities to which we are entitled upon the customer’s request to the extent that the realizable value of our securities exceeds the secured claims by more than 10%; the selection of the securities to be released is at our discretion.

§ 9 Jurisdiction – Place of Performance
(1) If the customer is a merchant under the Commercial Code, a legal entity under public law, or a public law special fund, the exclusive – even international – place of jurisdiction for all disputes arising from the contractual relationship is our place of business. However, we are also entitled to sue the customer at the court responsible for their place of business.
(2) The law of the Federal Republic of Germany applies, excluding the UN Sales Convention.
(3) Unless otherwise stated in the order confirmation, our place of business is the place of performance.