General Terms and Conditions of MMS COMMUNICATION M.Schmittinger GmbH & Co. KG

1. Scope

All contracts concluded with us are based exclusively on the following General Terms and Conditions. They are recognized by the buyer when the order is placed, but at the latest when the first delivery or service is accepted and apply for the entire duration of the business relationship. Deviating conditions only apply with our written consent. Assurances, ancillary agreements, changes to the contract and oral declarations require our written confirmation to be effective. Its requirement cannot be waived

2nd offer

Our offers are always non-binding. The contract is only concluded with our written confirmation and in accordance with its content or through delivery or the start of work. If delivery takes place immediately without confirmation, the invoice is also valid as an order confirmation. We reserve the right to make changes to the design and form of the subject matter of the contract without prior notice during the delivery period, provided that the subject matter of the contract and its appearance are not subject to any changes that are commercially unreasonable for the buyer. In particular, technical changes, improvements and adjustments to the latest state of science and technology, improvements in construction and the choice of materials are reasonable. All quantities, dimensions, colors and weights are subject to the customary tolerances. We reserve ownership and copyrights to illustrations, drawings, calculations and other documents. Before passing them on to third parties, the customer requires our express written consent. The customer is solely liable if the execution of his order infringes rights, in particular industrial property rights of third parties.

3. Establishment of Facilities and Warranty

The installation or construction of the systems ordered from us is carried out according to the regulations valid at the time of installation. The warranty covers the manufacturing work and the type of execution, but not the correctness of the structural design. The warranty of the respective supplier applies to the built-in components. Consequential damages that may arise from the delivered item are excluded. Otherwise, the General Terms and Conditions of Delivery for products and services in the electrical industry apply.

4. Delivery time and execution time

Agreed delivery periods begin with the conclusion of the contract. Compliance with our delivery obligation presupposes the timely and proper fulfillment of the customer's obligation and that the customer fulfills his contractual and possibly agreed payment obligations that are essential for the order. The objection that the contract has not been fulfilled remains reserved. We make every effort to meet the delivery dates and deadlines specified to the customer. The agreement of delivery dates and deadlines must be in writing. Subsequent changes and additions requested by the customer extend the delivery time appropriately. The same applies to measures in the context of labor disputes, in particular strikes and lockouts, as well as the occurrence of unforeseen obstacles that are beyond our control - such as force majeure, delivery delays of a sub-supplier, pandemics, traffic and operational disruptions, material or energy shortages - and demonstrably the manufacture or delivery of the delivery item have a significant influence. We are also not responsible for the aforementioned circumstances if they occur during an already existing delay. We are liable according to the statutory provisions insofar as the underlying purchase contract is a fixed transaction within the meaning of Section 286 (2) No. 4 BGB or Section 376 HGB. We are also liable under the statutory provisions if, as a result of a delay in delivery for which we are responsible, the buyer is entitled to assert that his interest in further fulfillment of the contract has ceased to exist. We are also liable according to the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible. If the delivery contract is not based on an intentional breach of contract for which we are responsible, our liability for damages is limited to the foreseeable, typically occurring damage. We are also liable under the statutory provisions if the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation; in this case, however, liability for damages is limited to the foreseeable, typically occurring damage. Otherwise, in the event of a delay in delivery, we shall be liable for a flat-rate compensation for delay of 0.5% of the delivery value for each full week of delay, but no more than 5% of the delivery value. Further legal claims and rights of the customer remain reserved. A period of grace set by the customer for performance or supplementary performance must not be less than two weeks.

5. Default of acceptance by the customer, order on call

If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage we have incurred, including any additional expenses. Further claims remain reserved. If the requirements of the present paragraph are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the point in time at which the customer is in default of acceptance or payment.

6. Passing of Risk

The risk passes to the customer as soon as the ordered goods have been handed over to him or a third person carrying out the transport. This is also the case if goods installed by us are damaged after installation or are stolen. If the shipment is delayed due to circumstances for which the customer is responsible, the risk is transferred to the customer from the day the goods are ready for shipment. Transport and all other packaging in accordance with the packaging regulations will not be taken back, with the exception of pallets. The customer is obliged to ensure that the packaging is disposed of at his own expense. Furthermore, the customer must provide a rubble container at the customer's expense when working on construction sites. If this is not the case, the costs incurred by us will be charged to the customer accordingly.

7. Prices - terms of payment

Unless otherwise stated in our order confirmation, our prices apply “ex warehouse”. Our prices include packaging. In addition, there may be shipping costs for pure delivery transactions or if a customer would like to have goods ordered by express. Furthermore, we calculate the value added tax in the respective statutory amount. We calculate the prices agreed upon when the contract was concluded, which are based on the cost factors valid at that time. If these cost factors, in particular material, wages, freight, duties, etc., change between the conclusion of the contract and the agreed delivery time, we are entitled to make a corresponding price change. Unless otherwise stated in the offer, the order confirmation or the invoice, the net purchase price (without deductions) is due for payment within 14 days of the invoice date and receipt of the invoice. Payments by check only count as payment once they have been credited to our account. The customer is only entitled to offsetting and retention rights if his counterclaims have been legally established, are undisputed or have been recognized by us. The customer can only assert a right of retention on the basis of counterclaims from the same delivery or service. If the customer is in arrears with a payment or if there are concrete indications of an impending insolvency of the customer, we can stop working on current orders and demand appropriate security for the fulfillment of the contract. If the customer does not provide such security within a reasonable period of time, we are entitled to withdraw from the contract (or contracts) and to invoice the customer for the costs incurred up to that point, including lost profits. If a customer withdraws from the contract, the customer has to pay a processing fee of 10%, but at least 50 euros.

8. Liability for Defects

The customer's claims for defects presuppose that he has properly fulfilled his obligations to examine and give notice of defects according to § 377 HGB. Recognizable defects must be reported in writing immediately after receipt of the delivery or after installation, hidden defects must be reported in writing immediately after discovery. If the purchased item is defective, we initially have the right to supplementary performance, whereby we can refuse the supplementary performance alternative chosen by the customer under the conditions of Section 439, Paragraph 3 of the German Civil Code. In the event that the defect is remedied, we only bear expenses up to the amount of the purchase price of the defective product or service. If the supplementary performance fails or if we refuse supplementary performance, the customer is entitled to choose between withdrawing from the contract or requesting a price reduction. A subsequent improvement is deemed to have failed after the second unsuccessful attempt, unless something else arises from the nature of the item or the defect or the other circumstances. We are liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our employees or vicarious agents. Insofar as we are not accused of intentional breach of contract, liability for damages is limited to the foreseeable, typically occurring damage. We are liable in accordance with the statutory provisions if we culpably breach a material contractual obligation, but in this case the liability for damages is limited to the foreseeable, typically occurring damage. Insofar as the customer is entitled to compensation for damage instead of performance, our liability is also limited to compensation for foreseeable, typically occurring damage. Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act. Unless otherwise regulated above, liability is excluded. The limitation period for claims for defects for goods is 24 months, for construction work 5 years, calculated from the transfer of risk or acceptance. The statute of limitations in the case of a delivery recourse according to §478, 479 BGB remains unaffected.

9. Joint Liability

Any further liability for damages than that provided for in Section 8 is excluded, regardless of the legal nature of the asserted claim. This applies in particular to claims for damages resulting from culpa in contrahendo, other breaches of duty or tortious claims for compensation for property damage in accordance with § 823 BGB. Insofar as the liability for damages towards us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, workers, employees and vicarious agents.

10. Retention of Title

We reserve ownership of the purchased item until receipt of all payments from the existing current account relationship (business relationship) with the customer; the reservation relates to the recognized balance. If the customer behaves in breach of contract, in particular in the event of default in payment, we are entitled to take back the purchased item. Our taking back the purchased item does not constitute a withdrawal from the contract unless we have expressly declared this in writing. If we seize the purchased item, there is always a withdrawal from the contract. After taking back the purchased item, we are authorized to sell it; the proceeds of sale are to be offset against the customer's liabilities, less reasonable costs of sale. In the event of attachments or other interventions by third parties, the customer must inform us immediately in writing so that we can file a suit in accordance with § 771 ZPO. Insofar as the third party is not able to reimburse us for the court and out-of-court costs of a lawsuit in accordance with § 771 ZPO, the customer is liable for the loss incurred by us. The customer is entitled to resell the purchased item in the ordinary course of business, but he already assigns to us all claims in the amount of the final invoice amount (including VAT) of our claims that accrue to him from the resale against his customer or third parties, and regardless of whether the purchased item was resold without or after processing. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim itself remains unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, does not default in payment and, in particular, no application for the opening of bankruptcy, composition or insolvency proceedings has been filed or payments have been suspended. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. The customer also assigns to us the claims to secure our claims against him, which arise against a third party through the connection of the purchased item with real estate. We undertake to release the securities to which we are entitled at the customer's request insofar as the realizable value of our securities exceeds the claims to be secured by more than 20%. We are responsible for selecting the securities to be released.


11. Place of Performance, Place of Jurisdiction, Applicable Law, Effectiveness, Miscellaneous

The place of fulfillment for deliveries and payments is the registered office of our company. The law of the Federal Republic of Germany applies, the validity of the UN sales law is excluded. Bonn is the exclusive place of jurisdiction for all disputes arising from the contractual relationship, including cheque, bill of exchange and document processes. We reserve the right to sue the customer at the court responsible for his place of residence. The possible ineffectiveness of one or more of the above provisions does not affect the effectiveness of the remaining provisions.


As of January 1st, 2021