Terms and conditions

A. General

§ 1 Scope

(1) These terms apply to all contracts between SMD GmbH (below “SMD”) and its contractual partners. They apply exclusively to businesses within the meaning of Section 14 of the German Civil Code (BGB), to legal persons under public law and to special funds under public law. We do not sell to consumers.

(2) Terms of the contractual partner that differ from or add to these terms do not become part of the contract, even if SMD does not expressly object to them or delivers in the knowledge of them.

(3) Individual agreements in text form take precedence over these terms.

§ 2 Conclusion of contract

(1) Offers, stock lists and the details shown in the shop and through the interface are subject to change and are not binding offers.

(2) An order placed by the contractual partner is an offer. The contract is concluded when SMD confirms the order in text form or delivers the goods.

(3) Availability figures relate to the moment they are retrieved. Because every device is a single item, a quantity shown may have been allocated in the meantime. Only the confirmation is binding.

§ 3 Prices, payment, default

(1) All prices are net prices and exclude shipping costs. VAT is governed by the statutory provisions and is shown on the invoice.

(2) Unless agreed otherwise, delivery is against advance payment by bank transfer. The goods are dispatched once the full amount has been received and are held back for ten calendar days until then.

(3) Where payment on account has been agreed, the amount is due without deduction within 14 days of the invoice date. If the contractual partner is in default, the statutory default interest for commercial transactions applies.

(4) Set-off and retention are permitted only against counterclaims that are undisputed or have been established by a final court decision.

§ 4 Applicable law, place of performance, place of jurisdiction

(1) German law applies. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

(2) The place of performance for delivery and payment is SMD's registered office.

(3) The exclusive place of jurisdiction for all disputes arising from the contractual relationship is SMD's registered office, provided the contractual partner is a merchant. SMD remains entitled to sue at the contractual partner's general place of jurisdiction.

B. Sale of refurbished hardware

§ 5 Subject matter: used goods

(1) SMD sells used, refurbished devices. The contractual partner buys in the knowledge of this.

(2) The condition follows from the grade, which is stated in the offer, the confirmation and the invoice. Signs of use that correspond to the respective grade are in conformity with the contract and are not a defect.

(3) For devices with a battery, the capacity on dispatch is at least 80 % of the nominal capacity, unless expressly agreed otherwise. A battery is a consumable part; a further decline in capacity through use is not a defect.

(4) Used devices are delivered without their original packaging. Accessories form part of the contract only if they are expressly listed.

(5) Before delivery, all data carriers are erased and the devices are reset to factory condition.

§ 6 Delivery, dispatch, passing of risk

(1) Delivery periods are not binding unless they have been expressly agreed as binding.

(2) Where the goods are dispatched, the risk of accidental loss and accidental deterioration passes to the contractual partner when the goods are handed over to the carrier (Section 447 BGB).

(3) Partial deliveries are permitted where they are reasonable for the contractual partner.

§ 7 Retention of title

The goods remain the property of SMD until all claims arising from the business relationship have been paid in full. The contractual partner is entitled to resell the goods in the ordinary course of business; it hereby assigns the resulting claims to SMD in the amount outstanding.

§ 8 Inspection and duty to give notice of defects

(1) The contractual partner must inspect the goods without delay after receipt. Obvious defects, incorrect deliveries and discrepancies in quantity must be notified in text form within seven working days of receipt, hidden defects without delay after they are discovered. Section 377 of the German Commercial Code (HGB) otherwise remains unaffected.

(2) For devices, the notice must state the IMEI or serial number and describe the fault. Collective notices without device identifiers cannot be processed.

(3) Damage in transit must additionally be documented with the carrier.

§ 9 Liability for defects

(1) For used goods, the limitation period for claims based on defects is one year from delivery. This does not affect claims for fraudulent concealment of a defect, claims under a warranty, claims under Sections 478 and 479 BGB, or claims for injury to life, body or health.

(2) In the case of a defect, SMD provides subsequent performance at its choice, either by repair or by replacement delivery. As the goods are single items, replacement may be made with an equivalent device of the same grade.

(3) There is no defect where there are signs of use within the scope of the grade, where damage results from improper handling, a drop or liquid, where third parties have intervened, or where software or account locks have been set by the contractual partner itself.

§ 10 Warranty and RMA procedure

(1) In addition to the statutory liability for defects, SMD grants a warranty of 12 months from the invoice date covering the functioning of the devices delivered. The warranty exists alongside statutory rights and does not restrict them.

(2) The warranty does not cover damage in transit, drop or liquid damage, intervention by third parties, wear to consumable parts, or signs of use that correspond to the grade delivered.

(3) Returns are only accepted with an RMA number issued by SMD. Consignments without an RMA number that can be matched to a case cannot be processed. The procedure is described at /en/rma.

(4) If the inspection shows that there is neither a defect nor a warranty case, SMD agrees the next steps with the contractual partner before any costs arise.

§ 11 Liability

(1) SMD is liable without limitation for intent and gross negligence, for injury to life, body or health, under the provisions of the German Product Liability Act, and to the extent of any warranty given.

(2) Where a material contractual obligation is breached through slight negligence, liability is limited to the foreseeable damage typical of this type of contract. Liability is otherwise excluded.

(3) SMD is liable for the loss of data only where the contractual partner has made adequate backups and the damage could not have been avoided even so.

C. Purchase of used devices

§ 12 Valuation and offer

(1) Valuations based on details provided by the contractual partner are subject to inspection after goods-in.

(2) A purchase offer is valid for the period stated in it. After that, SMD values again.

(3) If the condition established differs from the details provided, the device concerned is valued again individually. SMD states the deviation per device with its identifier. The contractual partner may object to the new valuation within five working days; in that case SMD returns the device at the contractual partner's expense.

§ 13 Obligations and assurances of the contractual partner

(1) The contractual partner assures that it is entitled to dispose of the devices, that they are free of third-party rights and that they are not reported as stolen or lost.

(2) The contractual partner is obliged to release the devices from all device management systems (in particular MDM and manufacturer programmes such as Apple Business Manager) and from all user accounts before handover, and to remove locks. SMD may reject devices that remain locked, or value them at nil.

(3) SIM cards and memory cards must be removed. SMD accepts no liability for data carriers that have not been removed.

(4) The contractual partner remains responsible for the data on the devices until SMD has carried out and recorded the erasure.

§ 14 Data erasure

(1) SMD erases all data carriers taken over using certified software intended for that purpose and produces an erasure record for each device.

(2) Data carriers that can no longer be erased technically are physically rendered unusable. The step is documented.

(3) The records are made available to the contractual partner on request, collected for the job in question.

§ 15 Passing of risk on purchase, settlement

(1) Where SMD or a carrier instructed by SMD collects the devices, the risk passes on collection. Where the contractual partner dispatches them, it bears the risk until they arrive at SMD.

(2) The number of units established by SMD at goods-in is decisive for settlement. Discrepancies against the delivery list are documented and notified without delay.

(3) Payment is made after inspection and erasure to the account named by the contractual partner.

D. Final provisions

§ 16 Text form, amendments, severability

(1) Declarations within this contractual relationship must be made in text form; e-mail is sufficient.

(2) Should any provision be invalid, the validity of the remaining provisions is unaffected. The statutory rules take the place of the invalid provision.