GTC

General Terms and Conditions of Sale and Delivery of GMW Machines GmbH (Supplier)

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Status: 11/2016

Scope of application:

Opposite

entrepreneurs, § 14 BGB;
legal entities under public law/a special fund under public law pursuant to § 310 BGB;

hereinafter collectively referred to as “Buyer”.

I. General

These conditions (as well as any separate contractual agreements) form the basis of all deliveries and services and shall also apply to all future business relations, even if they are not expressly agreed again.
Deviating (purchasing) conditions of the purchaser which are not expressly acknowledged in writing shall not become part of the contract even by acceptance of the order and shall not be applicable even by silence. By placing an order, the customer acknowledges these general terms and conditions of sale and delivery.
These terms and conditions shall also apply to all future transactions with the customer, insofar as these are legal transactions of a related nature and no updated terms and conditions exist.

II. Offers and conclusion of contract

All offers are subject to confirmation and non-binding, unless otherwise agreed in writing.
In the absence of a special agreement, a contract shall come into existence upon written confirmation of the order by the supplier. If an order is to be regarded as an offer (§ 145 BGB), it can be accepted within 2 weeks.
Orders are binding for the customer. Only the written order confirmation is authoritative for the acceptance, the scope and the execution of the delivery, unless the customer immediately objects in writing; this applies in particular to verbal orders. Orders modifying or supplementing the offer must also be confirmed in writing. To be valid, written confirmation shall also be required for telegraphic, telephone, e-mail or verbal agreements, assurances, supplements or subsidiary agreements.
The documents belonging to the offer show approximate values unless they are declared binding. All documents submitted to the customer in connection with the order, e.g. drawings, illustrations, calculations, cost estimates, technical picture material, etc., remain subject to ownership and copyright; they may not be opened to third parties without written permission. Such documents shall be returned in the event that the contract has not been concluded.
We reserve the right to customary design deviations (e.g. due to technical progress) which do not impair the intended use (e.g. colour deviation, change of shape).

III. Prices and payments

Unless otherwise agreed, the prices stated in the order confirmation are ex works Ennepetal, excluding packaging, unloading and customs duties. Packaging costs shall be charged at cost price. Value added tax at the respective statutory rate shall be added to the prices. Upon request, the delivery can be covered by transport insurance; the costs shall be borne by the customer.
In the absence of a special agreement, payment shall be made to the notified business account as follows: 50 % down payment after order placement within 10 days, 45 % within 10 days after completion and notification of readiness for dispatch, the remaining 5 % within 10 days after transfer of risk. The contractual agreement of deviating payment conditions (in particular after credit assessment, e.g. advance payment, cash on delivery etc.) remains reserved. Discount – deduction only in case of express agreement. In the absence of a special agreement, invoices are due immediately and without deduction.
The prices valid on the day of delivery are decisive for the pricing of brand-new machines, unless a fixed price agreement has been made. Reasonable and reasonable price changes due to changes in wage, material and distribution costs for deliveries made 6 months or more after conclusion of the contract are reserved, as well as in the event of significant exchange rate fluctuations (USD / EUR).
Interest on arrears shall be charged in accordance with § 288 Para. 2 BGB at 9% points above the base rate. The assertion of a concrete damage caused by default remains reserved.
The customer shall only be entitled to withhold payments or offset them against counterclaims to the extent that his counterclaims are undisputed or have been legally established. Warranty claims asserted shall not impede the maturity of the claim. If it becomes apparent after conclusion of the contract that the claim to counter-performance is endangered by lack of ability to pay, immediate provision of security or payment can be demanded (§321 BGB).
The right to secure deliveries via credit insurance and to provide the insurer with the necessary data of the customer and the order remains reserved.

IV. Delivery periods, delay in delivery

All information about delivery times are only approximate and therefore non-binding. For the beginning of the delivery time the date of the order confirmation is authoritative, if no other agreement is made (e.g. from receipt of payment of the prepayment). Compliance with the delivery period requires that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon him, such as the provision of documents to be provided, releases or (advance) payment obligations. If this is not the case, the delivery period shall be extended accordingly. In the event of non-compliance with the delivery period for which the Supplier is responsible, the Purchaser may demand performance in writing after expiry of the non-binding delivery date and set a delivery period of at least 4 weeks.
The observance of a stated delivery period is subject to correct and punctual self-delivery. Any delays that become apparent will be notified as soon as possible.
The delivery period shall be reasonably extended – even within a delay in delivery – in the event of force majeure, measures within the framework of industrial disputes, energy shortages or other events beyond the supplier’s control. The obligation to deliver shall be suspended for the duration of the disruption. The beginning and end of such hindrances will be communicated to the customer as soon as possible. Claims for damages are excluded (V.1.).
In the event of subsequent amendments to the contract which may influence the delivery period, the delivery period shall be extended accordingly.
The delivery period shall be deemed to have been observed if the delivery item has left the Supplier’s works by the end of the delivery period or readiness for dispatch has been notified. If acceptance is to take place, the acceptance date shall be decisive – except in the case of justified refusal of acceptance – or alternatively the notification of readiness for acceptance to the Purchaser.
If dispatch or acceptance is delayed at the customer’s request for reasons for which the customer is responsible, the customer shall be charged the costs incurred as a result of the delay, starting one month after notification of readiness for dispatch, but at least 0.5% of the invoice amount for each month if the goods are stored at the supplier’s works. The Supplier shall also be entitled, after setting and fruitless expiry of a reasonable period of time, to dispose otherwise of the delivery item and then to supply the Purchaser again within a reasonably extended period.
If the Purchaser suffers damage due to delay in delivery, he shall be entitled to demand a lump-sum compensation for delay excluding any further claims for damages. Such compensation shall amount to 0.5 % for each full week of delay, but not more than a total of 5 % of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay.
The customer checks the delivery documents and acknowledges them. Any objections must be made in writing without delay, otherwise the delivery shall be deemed accepted.

V. Right of withdrawal

If the Customer sets a deadline for performance (IV.1) after the due date – taking into account the statutory exceptions – and if the deadline is not met, the Customer shall be entitled to withdraw from the contract within the framework of the statutory provisions. At the Purchaser’s request, the Purchaser undertakes to state whether it intends to exercise its right to rescind the contract. Section I X. 2 shall apply in all other respects.
The customer may withdraw from the contract without setting a deadline if the entire performance becomes definitively impossible before the transfer of risk. In addition, the customer may withdraw from the contract if, in the case of an order, the execution of part of the delivery becomes impossible and he has a justified interest in rejecting the partial delivery. If this is not the case, the Purchaser shall pay the contract price attributable to the partial delivery. The same shall apply in the event of incapacity, otherwise Section X shall apply. 2. If the impossibility or incapacity occurs during the delay in acceptance or if the Purchaser is solely or predominantly responsible for these circumstances, he shall remain obliged to provide consideration.
If the fulfilment of the contractual delivery obligations is temporarily hindered by the occurrence of unforeseeable circumstances, in particular “force majeure” – despite the use of reasonable care according to the circumstances of the case – irrespective of whether the obstacles have occurred in the factory or at suppliers (e.g. operational disruptions, strike/lockout, delays in the delivery of essential raw materials, energy shortages, loss of means of transport etc.), the delivery obligation shall lapse without the customer being able to assert claims for damages (IV.3). The customer shall only be entitled to withdraw from the contract if the delay is unreasonable for him.

VI. Transfer of Risk, Acceptance and Dispatch

The risk shall pass to the customer upon commencement of loading of the delivery item, even if partial deliveries are made or the supplier has assumed other services, e.g. shipping costs or delivery. Insofar as acceptance is to take place, this shall be decisive for the transfer of risk. It must be carried out immediately on the acceptance date or after notification of readiness for acceptance (within 7 working days). The customer may not refuse acceptance if there is an insignificant defect. If the customer does not accept the goods or refuses to do so despite a grace period being set, damages may be claimed for non-performance and/or the contract may be rescinded in whole or in part.
If dispatch or acceptance is delayed or fails to take place due to circumstances for which the Supplier is not responsible, the risk shall pass to the Purchaser from the date of notification of readiness for dispatch or acceptance. From the same date, the Purchaser shall be liable for any damage which may be caused to third parties. It is assured to take out the insurances demanded by the purchaser at the purchaser’s expense.
Shipment shall always be at the risk of the Purchaser, even in the case of carriage paid deliveries and transport with the Purchaser’s own vehicles. The route, type and means of shipment shall remain at the Supplier’s discretion, to the exclusion of liability and without guarantee for the cheapest transport, unless the Purchaser has given any instructions.
Partial deliveries shall be permissible insofar as they are reasonable for the customer.

VII. Claims for defects / warranty

The customer must inspect the goods immediately after delivery and report any defects/incorrect deliveries/shortfall in quantities in writing without delay (within 1 week of receipt). The obligations to inspect and give notice of defects are governed by § 377 HGB (German Commercial Code). The Supplier shall have the opportunity to record and inspect the notified defect; the delivery item shall not be changed/processed/released to third parties for the time being. Insofar as measures are taken to minimise damage or negotiations are commenced on the grounds of a notified defect, this shall neither be deemed an acknowledgement nor a waiver of the objection to the notification not being made in good time.
Delivered parts which turn out to be defective as a result of a circumstance prior to the passing of risk shall be repaired or replaced free of defects at the discretion of the Supplier; replaced parts shall become the property of the Supplier.
After notification, the Purchaser shall grant the necessary time and opportunity to carry out all necessary repairs and replacement deliveries in the event of a justified complaint; otherwise the Purchaser shall be released from liability for the resulting consequences. Only in urgent cases to prevent disproportionately large damage or endanger operational safety, in which case the Supplier must be notified immediately, shall the Purchaser have the right to remedy the defect himself or have it remedied by third parties and demand reimbursement of the necessary expenses. If the defect is repaired or replaced within the scope of the warranty, this shall not trigger a new commencement of the warranty obligation. Multiple rectifications are permissible.
If a complaint turns out to be justified, the Supplier shall bear the costs arising from the repair or replacement delivery only to the extent that no disproportionate burden occurs. Of the direct costs arising from the repair or replacement delivery, the Supplier shall bear the costs of the replacement delivery including dispatch to the originally agreed place of delivery. Any costs for dismantling and installation, labour costs or costs for transportation to a place other than the place of delivery shall be borne by the Purchaser.
Within the framework of the statutory provisions, the Purchaser shall have the right to withdraw from the contract if the Supplier – taking into account the statutory exceptions – allows a reasonable deadline set for the repair or replacement delivery due to a material defect to elapse fruitlessly. If there is only an insignificant defect, the Purchaser shall only be entitled to reduce the contract price. The right to reduce the contract price shall otherwise be excluded. Further claims shall be determined in accordance with Section IX. 2 of these Terms and Conditions.
In particular, the Supplier shall not assume any warranty in the following cases: Usability of the goods for the purpose intended by the customer, unless the usability has been expressly confirmed by contract, unsuitable or improper use, faulty assembly or processing/repair by the customer or third parties, installation of foreign parts, natural wear, excessive strain/wear (all rotating parts, drive, tools; scale is single shift operation), faulty or negligent treatment, chemical, electrochemical or mechanical influences, unless the supplier is not responsible for them. Customary deviations in weight, colour, dimensions and quantity do not constitute a defect.
Properties shall only be deemed warranted if they are expressly designated as such in the contract. No warranty shall be assumed for information, advice and references regarding any performance characteristics, areas of application, possible uses, etc., unless they have been assured in writing. Oral information as well as information in the documents do not contain any assurances; they only serve the purpose of specification. As far as the materials to be used by the supplier are contractually specified, this only guarantees the specification and not the suitability of the materials for the contractual purpose. The Supplier shall only be obliged to provide information in the event of their obvious unsuitability. The customer shall inform himself of any export regulations and government regulations.
In the case of used goods, a warranty is excluded unless the supplier conceals defects intentionally or through gross negligence.
The Purchaser’s right of recourse against the Supplier shall only exist to the extent that the Purchaser has not entered into any agreements with its customer which go beyond the legally mandatory claims based on defects.
If the customer or a third party commissioned by him carries out improper repairs, the supplier assumes no liability for the resulting consequences. The same shall apply to changes to the delivery item made without prior consent.

VIII. Retention of title

Ownership of the delivered item shall remain reserved until complete payment of all claims arising from the delivery contract. This shall also apply to all future deliveries, even if this is not always expressly referred to. The object of purchase can be taken back if the customer behaves contrary to contract (in particular default in payment).
As long as the ownership has not yet been transferred to the customer, he is obliged to treat the object of sale with care. In particular, he is obliged to insure the goods at his own expense against theft, fire and water damage as well as other damage at replacement value. If the Purchaser fails to provide proof of insurance at the Supplier’s request, the Supplier shall be entitled to insure the delivery item at the Purchaser’s expense. If maintenance and inspection work has to be carried out, the Purchaser shall carry this out in good time at its own expense.
The Purchaser shall be entitled to resell the reserved goods in the ordinary course of business. The Purchaser hereby assigns to the Supplier all claims against the Buyer arising from the resale of the reserved goods (including balance claims arising from current account agreements, from sales, from processing and converting / combining the delivered goods) to the amount of the agreed final invoice amount (including value added tax); this also applies to the Purchaser’s claims in respect of the reserved goods on other legal grounds (insurance, tort, etc.). The assignment shall apply irrespective of whether the object of sale has been resold without or after processing. The customer remains authorised to collect the claim even after the assignment. The authority of the supplier to collect the claim himself remains unaffected. However, the Supplier shall not collect the claim as long as the Purchaser meets his payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed for insolvency or suspended payments. As soon as the purchaser does not fulfil a contractual obligation, he shall disclose the assignment upon request and provide the necessary information and documents.
If a customer of the Purchaser has effectively excluded the assignment of claims against him, the Purchaser and the Supplier shall act internally as if the aforementioned claims assigned in advance had been effectively assigned to the Supplier; the Supplier shall be authorised by the Purchaser to assert the claims in his name for his own account as soon as the Purchaser is no longer entitled to collect the claim in his own name in accordance with the above provision (Clause 3).
The processing and transformation of the object of purchase by the Purchaser shall always be carried out for the Supplier without any liabilities arising therefrom. If the object of sale is processed or mixed with other objects not belonging to the Supplier, the Supplier shall acquire co-ownership of the new object in the ratio of the objective value of the object of sale subject to retention of title to the other processed objects at the time of processing/mixing. If the combination/mixing takes place in such a way that the Customer’s item is to be regarded as the main item, it shall be deemed agreed that the Customer transfers proportionate (co-)ownership to the Supplier and keeps the (co-)ownership thus created in safe custody for the Supplier. If the acquisition of (co-)ownership is legally prevented, the Purchaser shall assign his claim for compensation to the Supplier as a substitute.
In order to secure the claims against the Purchaser, the Purchaser shall also assign to the Supplier such claims which accrue to it against a third party as a result of the combination of the reserved goods with real property; the Supplier shall accept such assignment. The Supplier shall be entitled to demand appropriate securities for the proper fulfilment of the Purchaser’s obligations. The Supplier undertakes to release the securities to which he is entitled at the Purchaser’s request insofar as their value exceeds the claims to be secured by more than 20%.
The delivered goods may neither be pledged nor transferred by way of security without consent. In the event of access by third parties to the goods subject to retention of title, the customer shall point out the ownership on this side, inform the supplier immediately and provide all assistance necessary to safeguard the rights. Insofar as the third party is not in a position or obliged to reimburse the court and out-of-court costs incurred thereby, the Purchaser shall indemnify the Supplier against such costs.
In the event of breach of contract on the part of the customer and credit unworthiness – in particular default in payment – immediate segregation may be demanded. The Supplier shall be entitled to take back the delivery item and the Purchaser shall be obliged to surrender it. The Purchaser shall grant the Supplier or its agents access for collection and removal.
An application for the opening of insolvency proceedings against the Customer’s assets shall entitle the Customer to withdraw from the contract and to demand the immediate return of the delivery item.

IX. Liability

If the delivery item cannot be used by the Purchaser in accordance with the contract through the fault of the Supplier as a result of omitted or faulty execution, proposals and consultations made before or after conclusion of the contract or as a result of a breach of other contractual ancillary obligations, the provisions of Sections VI I. and IX. 2 shall apply accordingly to the exclusion of further claims by the Purchaser.
The Supplier shall only be liable – for whatever legal reasons – for damage which has not occurred to the delivery item itself
a) in the case of intent, culpable injury to life, limb or health,
b) in the case of defects which were fraudulently concealed or the absence of which was guaranteed,
c) in the event of defects in the delivery item, insofar as liability is assumed under the Product Liability Act for personal injury or property damage to privately used items,
d) in the event of gross negligence on the part of the executive bodies or executive employees, and
e) in case of culpable violation of essential contractual obligations. Liability for the negligent breach of material contractual obligations and gross negligence on the part of vicarious agents shall be limited to typical and reasonably foreseeable damage. There shall be no obligation to pay compensation for slightly negligent breaches of duty by legal representatives and vicarious agents.
Further claims are excluded.

X. Statute of limitations

All claims of the customer – on whatever legal grounds – shall become statute-barred after 12 months. If the purchased item is used in multi-shift operation, the limitation period for claims based on defects shall be shortened accordingly. The statutory limitation periods shall apply to claims for damages in accordance with Section IX. 2 a – e.

XI. Use of software

Insofar as software is included in the scope of delivery, the customer shall be granted the non-exclusive right to use such software. Use on more than one system is prohibited. The customer may only copy, revise, translate or convert the software from the object code to the source code to the extent provided for by law. The Purchaser shall not remove or alter any manufacturer’s specifications without the Supplier’s prior express consent.
All other rights to the software and the documentation including copies shall remain with the supplier or the software supplier. Sublicensing is not permitted.

XII. Place of performance, place of jurisdiction, applicable law

Place of performance for all obligations arising from the contractual relationship is the registered office of the supplier.
The place of jurisdiction shall be the Supplier’s place of business if the Purchaser is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany. However, the Supplier shall also be entitled to bring an action at the Purchaser’s place of business.
All legal relationships between the Supplier and the Purchaser shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic parties to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
In the case of foreign business transactions, the application of §§ 305 – 310 BGB (German Civil Code) is additionally excluded.

XIII. Final provisions

The possible invalidity of individual provisions shall not affect the validity of the remaining provisions. An ineffective provision shall be replaced by a provision that comes closest to the economic purpose of the ineffective provision in a legally permissible manner.
Oral collateral agreements do not exist. Amendments and supplements must be made in writing; this also applies to the written form clause itself.
Personal data of the customer will be collected, processed and stored for the purpose of contract execution.