General Terms and Conditions (GTC’s)
Area: Sale-, Delivery- and Performance
1. General, sphere of application
(1) These General Sales, Supply and Service Terms and Conditions (GTC’s) shall apply to all business relationships with our customers (hereinafter referred to as the “Party Ordering”). The GTC’s shall only apply if the ordering entrepreneur (section 14 BGB [German Civil Code]) is a legal entity under public law or a special fund under public law.
(2) The GTC’s shall apply, in particular, to the sale and/or delivery of moveable items (hereinafter referred to also as “Goods”) without taking into consideration whether we produce the goods ourselves or purchase them from suppliers (sections 433, 651 BGB) and to all the other services which we provide. The GTC’s shall also apply in their currently valid version as a framework agreement for future contracts concerning the sale and/or delivery of moveable items and/or other services, which we provide, to the same Party Ordering without our having to draw attention to them in every individual case.
(3) Our GTC’s shall apply exclusively. Any deviating, contrary or supplementary General Terms and Conditions of the Party Ordering shall only become a part of the contract if and inasmuch as we have expressly agreed to their applicability. This requirement for agreement shall always apply, even if, for example, in knowledge of the General Terms and Conditions of the Party Ordering, we carry out supply to and services for him without reservation.
(4) Any agreements made with the Party Ordering in an individual case (including additional arrangements, supplements or amendments) shall always have priority over these GTC’s. A written contract or our written confirmation is decisive for the content of such agreements.
(5) Any declarations or notices of legal significance which may be made or given towards us by the Party Ordering after the conclusion of contract (e.g. the setting of time-limits, notices of defects, any declaration of withdrawals or reduction) require written form to be effective.
(6) Any reference to the application of statutory regulations shall only have clarifying significance. Even without such clarification, the statutory regulations shall apply as long as they are not directly modified or expressly excluded in these GTC’s.
2. Conclusion of contract
(1) Our offers are subject to confirmation and are non-binding. This shall also apply if we have sent the Party Ordering catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – in which we reserve title and copyright.
(2) The order placed by the Party Ordering shall be regarded as a binding offer of contract. Inasmuch as the order does not include anything else, we shall be entitled to accept this offer of contract within 2 weeks of receiving it.
(3) Acceptance can be declared either in writing (e.g. by confirmation of order) or by performance towards the Party Ordering.
3. Scope of duty to deliver
(1) Statements concerning dimensions, weights, forms and also diagrams are, inasmuch as not otherwise expressly declared in the offer or in the confirmation of order, only approximate.
(2) In the case of special products such as, for example, screws, nuts, washers, we reserve the right to additional production of up to 10% to ensure achievement of the agreed piece number. In this case, the additional items delivered shall also be accepted and paid for at the agreed price.
(3) We are entitled to make partial deliveries inasmuch as such are reasonable for the Party Ordering.
(4) Delivery shall take place ex store which shall also be the place of performance. At the request and cost of the Party Ordering, the Goods may be sent to a certain place of destination (purchase to destination). Inasmuch as nothing else has been agreed, we are also entitled to determine the type of shipping (in particular the shipping company, transport route, packaging) ourselves.
4. Delivery period
(1) The delivery period stated is non-binding if nothing else has been expressly agreed in writing.
(2) If the binding nature of the delivery period is expressly agreed in writing, delivery shall commence on the date of our confirmation of order, however, not before complete clarification of all technical details. It shall have been observed if the Party Ordering has been given notice of readiness for shipping within the agreed period.
(3) The delivery period shall be extended – irrespective of any other rights arising from delay on the part of the Party Ordering – by the period for which the Party Ordering does not fulfil its due obligations to co-operation or payment.
(4) Inasmuch as we cannot adhere to binding delivery periods for reasons for which we are not responsible (non-availability of service), we shall inform the Party Ordering about this situation without delay and, at the same time, notify him of the probable new delivery period. Should the service also be non-available within the new delivery period, we shall be entitled to withdraw, fully of partly, from the contract; we shall refund any already payment made by the Party Ordering without delay. In particular, any delayed delivery to ourselves by our suppliers shall be regarded as a case of non-availability of the service in these terms if we have concluded a congruent hedging transaction. Our statutory rights to withdrawal or termination and the statutory regulations concerning execution of contract including exclusion of the duty to perform (e.g. impossibility or non-reasonability of performance and/or subsequent performance) shall not be affected. The rights to withdrawal and termination of the Party Ordering in accordance to no. 8 of these GTC’s shall also not be affected.
5. Prices and payment conditions
(1) In as much as nothing else has been agreed for the individual case, those prices, which are current at the point of time of conclusion of contract, shall apply ex store plus the statutory sales tax.
We are entitled to adjust our prices to new circumstances in the case of any increases of the material prices, input costs and/or wage costs during execution of the order inasmuch as the delivery should take place or takes place at a later point of time than 4 months after conclusion of contract.
(2) In the case of purchase to destination (no. 3, sub-section 4) the Party Ordering shall bear the costs of shipping ex store and also the costs of any shipping insurance which the Party Ordering may possibly desire in addition. Any customs duties, charges, taxes or other public levies shall be borne by the Party Ordering. No transport packaging or any packaging in accordance with the stipulations of the Packaging Ordinance shall not be returnable; it shall become the Party Ordering’s property; pallets are not included in this.
(3) The purchase price is due and shall be paid within 14 days of invoicing and delivery and/or acceptance of the Goods.
(4) On the above period being exceeded, the Party Ordering shall come into delay. The purchase price is subject to interest during delay at the currently valid statutory delay interest rate. We reserve the right to assert further-reaching damages for delay. Our claim to the commercial interest for arrears (section 353 HGB) towards business persons is not affected.
(5) The Party Ordering may only exercise set-off or retention rights inasmuch as his claim has been legally established or is otherwise undisputed. In the case of defects, section 7 sub-section 6 shall not be affected.
(6) If it becomes evident after conclusion of contract that our claim to the purchase price is endangered due to inability to pay on the part of the Party Ordering (e.g. through the opening of insolvency proceedings), we shall then be entitled, in accordance with the statutory regulations to refuse fulfilment of the service and – if pertinent, after setting a date – to withdraw from the contract (section 321 BGB). In the case of contracts concerning the production of specific items (single-unit production), we may declare withdrawal immediately; the statutory regulations concerning the dispensability of setting a time-limit are not affected.
6. Reservation of title
(1) We shall retain the title to the sold goods until final payment for all our present and future claims under the purchase contract and the ongoing business relationship (secured claims).
(2) The Goods, for which title is reserved, may not be pledged to third parties or assigned by way of security before final payment of the secured claims. The Party Ordering shall notify us without delay and in writing if and inasmuch as access by third parties takes place in respect of the Goods belonging to us.
(3) In the case of behaviour contrary to contract on the part of the Party Ordering, in particular in the case of non-payment of the due purchase price, we shall be entitled, in accordance with the statutory regulations, to withdraw from the contract and/or demand surrender of the Goods due to reservation of title. The demand for surrender does not automatically mean declaration of withdrawal; rather, we are entitled only to demand surrender of the Goods and reserve the right to withdrawal. If the Party Ordering does not pay the due purchase price, we may only assert these rights if we have previously and unsuccessfully set the Party Ordering a reasonable time-limit or it is not necessary to set a date according to the statutory regulations.
(4) The Party Ordering is authorised to further sell and/or process the Goods subject to reservation of title within the normal course of business. In this case the following provisions shall apply in addition.
a) Reservation of title shall extend to the products created through processing, mixing or combining our Goods at their full value whereby we shall be regarded as the manufacturers. If, in any processing, mixing or combination of the goods of third parties, the reservation of title remains intact, we shall acquire co-ownership in ratio to the invoice value of the processed, mixed or combined goods. Otherwise, the same shall apply for the product created as for the Goods delivered under reservation of title.
b) The claims against third parties arising from further sale of the Goods or the products are already assigned to us now as surety, fully or at the amount of any co-ownership of ours in accordance with the above clause. We accept such assignment. The Party Ordering’s duties stated in sub-section 2 shall also apply in respect to the assigned claims.
c) As well as us, the Party Ordering is entitled to collect the claims. We undertake not to collect the claims as long as the Party Ordering fulfils his payment obligations towards us, does not come into delay in respect to payment, no petitions for the opening of insolvency proceedings has been filed and there is otherwise no concern about his ability to pay. If, however, this is the case, we can then demand that the Party Ordering notifies us of the assigned claims and the debtors, provides the information necessary for collection, releases the associated documents and notifies the debtors (third-party) of the assignment.
d) If the realisable value of the sureties exceeds our claims by more than 10%, we shall release sureties on request by the Party Ordering in accordance with our own choice.
(5) Our reservation of title in accordance with the above provisions shall still apply if our claims or parts thereof have been included in a current invoice and the balance has been established and recognised.
7. Transfer of risk
The risk of accidental loss or accidental deterioration of the Goods shall be transferred, at the latest, on transfer to the Party Ordering. In the case of purchase to destination, however, the risk of accidental loss or accidental deterioration of the Goods and the risk of delay shall already be transferred on delivery of the Goods to the carrier, the haulage contractor or the person or agency otherwise determined for execution of shipping. Inasmuch as acceptance has been agreed, this shall be decisive for the transfer of risk. Otherwise as well, the statutory provisions of work and services contract law shall correspondingly apply to any agreed acceptance. If the Party Ordering is in delay, the same shall apply to transfer or acceptance.
8. Party Ordering’s claims due to defects
(1) The statutory regulations shall apply to the Party Ordering’s rights in the case of material defects or defects in title (including false or shortfall in delivery or improper assembly or deficient assembly instructions) inasmuch as nothing else has been determined in the following. The special statutory regulations for final delivery of the Goods to a consumer (supplier’s recourse in accordance with sections 478, 479 BGB) shall remain unaffected.
(2) The basis of our liability for defects is, above all, the agreement made concerning the quality of the Goods. All product descriptions which are the object of the individual contract shall be regarded as agreements concerning the quality of the Goods; no difference shall be made here as to whether the product description originates from the Party Ordering, the manufacturer or from us.
(3) Inasmuch as a particular quality has not been agreed, judgement shall be made in accordance with statutory regulations as to whether there is a defect or not (section 434 sub-section 1 pages 2 and 3 BGB). We shall, however, not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising slogans).
(4) Prerequisite for the Party Ordering’s claims for defects is that he has fulfilled his duties concerning inspection and complaint (sections 377, 381 HGB [German Commercial Law]). If a defect becomes apparent during inspection or thereafter, we shall be notified in writing without delay. Such notice shall be regarded as having been given without delay if it takes place within two weeks whereby, to maintain the period, it is sufficient if notice is sent in good time. Independent of this duty concerning inspection and complaint, the Party Ordering shall give notice of obvious defects (including false or shortfall in delivery) within two weeks of delivery in writing whereby, here also, to maintain the period, it is sufficient if notice is sent in good time. If the Party fails to carry out inspection and/or give notice, our liability for the defect, which has not been notified to us, is excluded.
(5) If the delivered item is defective, we shall have the option of subsequent performance by way of elimination of the defect (subsequent improvement) or by way of delivery of an item without defect (replacement delivery). Our right to refuse the selected type of subsequent performance, as stated in the statutory prerequisites, is not affected.
(6) We are entitled to make the subsequent performance to which we are obliged dependent on the Party Ordering’s payment of the purchase price. The Party Ordering is, however, entitled to retain a portion of the purchase price reasonable in ratio to the defect.
(7) The Party Ordering shall give us the time and opportunity necessary for the subsequent performance to which we are obliged, in particular to hand over the Goods which are the object of complaint for the purposes of examination. In the case of replacement delivery, the Party Ordering shall return the defective item in accordance with the statutory regulations.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular shipping, route, labour and material costs, if there is actually a defect. If, however, any demand for elimination of a defect by the Party Ordering evolves as unjustified, we may then demand the costs arising from this to be refunded by the Party Ordering.
(9) In cases of urgency, e.g. in the case of operating safety being endangered or to ward off disproportionate damage, the Party Ordering shall have the right to eliminate the defect itself and to demand compensation from us for the expenses objectively necessary for this. We shall be notified without delay if the Party Ordering resorts to its own action, if possible, previously. The Party Ordering shall not have the right to carry out elimination itself if we had had the right to refuse such subsequent performance in accordance with the statutory regulations.
(10) If subsequent performance has failed or if the date set by the Party Ordering for subsequent performance has elapsed without success or is dispensable according to the statutory regulations, the Party Ordering may withdraw from the purchase contract or reduce the purchase price. In the case of a negligible defect, there shall be no right to withdrawal.
(11) The Party Ordering has a claim to damages or refund of expenses incurred without avail only in accordance with the stipulation contained in no. 9; it is otherwise ruled out.
9. Other liability
(1) Inasmuch as nothing else has been determined in these GTC’s, including the following provisions, we shall keep to the relevant statutory regulations in the case of violation of contractual or non-contractual duties.
(2) We shall be liable for damages – no matter for which legal reasons – in the case of intent or gross negligence. In the case of slight negligence, we shall only be liable
a) for damage resulting from fatal injury, physical injury or damage to the health,
b) for damage resulting from violation of a significant contractual duty (an obligation, the fulfilment of which is essential for correct execution of the contract and, on the observance of which the contract partner can rely and in which it can place its trust); in this case, however, our liability is limited to the foreseeable typically arising damage.
(3) The limitations of liability stated in clause 2 shall not apply if we have maliciously concealed a defect or have assumed warranty for the quality of the Goods. The same shall apply to any claims by the Party Ordering in accordance with the Product Liability Act.
(4) The Party Ordering may only withdraw from or terminate the contract due to a breach of contract which does not exist in a defect, if we are responsible for the breach of contract. Any free right to termination on the part of the Party Ordering (in particular pursuant to section 651, 649 BGB) is ruled out. Otherwise the statutory prerequisites and legal consequences shall apply.
(1) Inasmuch as the Party Ordering returns finished Goods to us in agreement with us, he shall be granted corresponding credit.
(2) If damage is established on the returned Goods, we shall be entitled to revoke the right to return and credit.
11. Protective rights of third parties
If the production of Goods and deliveries take place in accordance with the Party Ordering’s drawings or other information and if the protective rights of third parties are violated by these, the Party Ordering shall indemnify us against all claims lodged by the holder of the protective rights and compensate us for any damage.
12. Choice of law, place of performance, place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GTC’s and all legal relationships between us and the Contractor ruling out any international or supranational (contractual) legal provisions, in particular the UN Convention on Contracts for the International Sale of Good (CISG). The prerequisites for and effects of the reservation of title pursuant to no. 6 are subject to the law applicable at the place at which the item concerned is stored inasmuch as, under said law, the choice of law taken in favour of German law is impermissible or ineffective.
(2) If the Party Ordering is a businessman in the terms of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of performance and the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our business premises in Bremen. We are, however, entitled to take action at the general place of jurisdiction of the Party Ordering.
The ineffectiveness of individual conditions of the above Sales and Delivery Terms and Conditions shall have no effect on the binding legal force of the other provisions.
Gerus Apparatebau GmbH & Co.KG
Tel.: +49 (0)821 588 662 – 0
Fax: +49 (0)821 588 662 – 10
Stand der AGB`s: 01.01.2016