General Terms of Sale and Delivery (GTSD)
Translation from the German language; translator’s annotations in italic type and in [ ]
1.1 The present General Terms of Sale and Delivery shall apply only with respect to entrepreneurs, they shall not apply to consumers.
1.2 All deliveries and services effected by us shall be governed by these General Terms of Sale and Delivery exclusively. We do not acknowledge any terms to the contrary or any deviating or additional terms used by the customer, unless such have been expressly approved by us.
1.3. Our General Terms of Sale and Delivery shall also apply to future business, even if in specific cases we have made no reference to the same.
2. Offer and Conclusion of Contract
2.1 Our offers are without obligation and are not binding unless they have been expressly stipulated to be binding.
2.2 Each order shall be governed by our written acknowledgement of order. An invoice sent together with the delivery may also be deemed to be an acknowledgement of order. If the customer has any objections as to the contents of the acknowledgement of order, he must oppose such acknowledgement of order without delay. Otherwise the contract shall take effect in accordance with the acknowledgement of order.
3. Terms of Delivery, Delayed Delivery
3.1 Delivery periods shall begin as specified in the order confirmation, provided the customer complies with his obligations, and all technicalities and commercial conditions have been agreed upon. If these conditions have not been met, delivery periods shall be extended accordingly.
3.2 The delivery period shall be met, if the goods have left the premises before the end of the stated period.
3.3 We shall not be liable for any delays in delivery or performance due to Force Majeure or unforeseeable circumstances beyond our control which substantially impede or render impossible our delivery of goods or services, even in the event of time limits and deadlines which have been agreed as binding. Such shall entitle us to postpone delivery or service for the duration of the impediment plus a reasonable lead time. If the impediment exceeds a duration of three months the customer shall be entitled to withdraw from the contract after granting an appropriate extension. In this case, any claims for damages by the customer shall be excluded.
3.4 If delivery is delayed for reasons for which we are responsible, we shall be liable, in cases of gross negligence, for the damage suffered by the customer on account of the delay. In the event of slight negligence, our liability with regard to ascertained damage caused by the delay shall be limited to the payment of liquidated damages of 0.5 % for every full week’s delay up to a maximum of 5 % of the price of that part of the delivery which, on account of the delay, could not be put to the intended use.
4. Dispatch and Passing of Risk
4.1 Dispatch and transportation of the goods shall be at the risk and expense of the customer. The risk shall pass to the customer as soon as the goods leave our premises. This shall also apply, if, in specific cases, we have agreed to deliver carriage paid. The customer may, at his option, take out transport insurance. If dispatch is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer the day the goods are ready for shipment.
4.2 If we choose mode or way of dispatch or forwarder, we shall only be liable in case of gross negligence in choosing.
4.3 We may perform partial deliveries if such action would not unreasonably affect the customer.
4.4 Return deliveries shall only be taken back by prior arrangement. Returned goods will be credited reduced by a re-warehousing fee in the amount of at least 10 % of the goods value.
5. Prices and Payment
5.1 Each order shall be subject to the prices quoted in the acknowledgement of order. These prices shall be ex works and exclude packaging, freight, postage, insurance, customs duty, other expenses and value-added-tax.
5.2 If, after the conclusion of the contract and until the execution of the order, any cost increases arise which were unforeseeable for us, e.g. on account of an increase in wage or material costs or on account of the introduction of or considerable increase in taxes or customs duties, we shall have the right to adjust the prices, taking into consideration the altered circumstances and without calculating any additional profit. Such shall not apply if we are in delay of delivery.
5.3 We have the right to demand advance payment for outstanding deliveries or services, if – after conclusion of the contract – we become aware of circumstances which are likely to significantly diminish the creditworthiness of the customer or which endanger the payment of invoices outstanding.
In this case we also have the right to prohibit the resale and processing of goods already delivered under retention of title.
6. Offsetting against Claims and Retaining Lien
The customer may only offset counterclaims that are undisputed or recognised by declaratory judgement. The customer may only enforce a right of retention if such claim is based on the same contractual relationship.
7. Notification of Defects
7.1 The customer must check each delivery for completeness and damage to the packaging upon receipt. Complaints must be sent to us immediately in writing. The forwarding company must be given a formal report of the issue by the customer.
7.2 The customer must examine the delivery item at once and notify us in writing of any apparent defects without delay. The obligation to examine and complain also extends to deviations in quantity and identity. Hidden defects must be reported in writing immediately after their discovery. At our request, the customer is obliged to return the delivery item in question.
8. Warranty Claims
8.1 In the event of a defect for which we are responsible, we shall be entitled to carry out subsequent performance and we shall be free to either remedy the defect or to deliver goods free of defects in replacement. If we refuse to carry out subsequent performance, if the subsequent performance fails or cannot be reasonably expected of the customer, the customer shall be entitled to assert the additional claims laid down by law. Any insignificant lessening of value or minor impairments of usefulness shall not be taken into consideration. Damage claims for defective goods shall be subject to the provisions stipulated under item 9 hereof.
8.2 To enable us to remedy all defects and/or effect all substitute deliveries which we deem necessary, the customer must grant us the necessary time and opportunity; otherwise, we shall not be liable for the consequences which may arise therefrom. Only in urgent cases where the general plant safety is compromised or disproportionate damage needs to be prevented, the customer shall be entitled to remedy the defect himself or have it remedied by a third party and claim from us reimbursement of the necessary expenses.
8.3 Claims of the customer based on defects shall be subject to a limitation period of 12 months after delivery. However, the statutory periods of limitation shall apply to things which in accordance with their customary usage have been used for a building and to cases of fraudulent concealment of a defect and cases of the entrepreneur’s right of recourse.
8.4 Warranty for defects shall not include:
- Improper handling, e.g. machine overload or use of non-approved insertion tools;
- Use of force, tampering or damage caused by foreign objects, e.g. sand or stones;
- Damage caused by non-observance of the instructions for use, e.g. connection to incorrect mains voltage or type of current;
- Normal wear and tear, e.g. in case of flexible shafts or gear wheels;
- Machines which are disassembled in part or in whole.
When asserting a warranty claim the original sales document indicating the date of purchase must be enclosed.
9. Return of Goods
Return deliveries of regularly ordered and fully intact goods shall only be taken back by prior arrangement. Returned goods will be credited reduced by a re-warehousing fee in the amount of at least 10 % of the goods value.
10.1 We shall be liable for damage caused by intent and gross negligence. We shall only be liable for slight negligence if such negligence results in the breach of fundamental contractual obligations which go to the root of the contract or if such breach of contract endangers the attainment of the contractual purpose. In all other respects, claims for damages asserted by the customer and relating to slight negligence shall be excluded, irrespective of the legal grounds such claims are based on.
10.2 The foregoing limitation on liability shall not apply to claims for damages under the “Produkthaftungsgesetz” [German Product Liability Act], in cases of harm to life, body or health. In addition to the aforesaid, a limitation on liability shall not apply to damage claims based on material defects if we have fraudulently concealed a defect or if we have given a guarantee.
10.3 Claims based on material defects shall be subject to a limitation period of 12 months after delivery. In the cases stipulated under item 8.3 hereof, in cases of intent, gross negligence, harm to life, body and health for which we are responsible, as well as in the event of claims under the “Produkthaftungsgesetz” the statutory provisions governing limitation periods shall apply.
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12. Retention of Title
12.1 We retain title to all goods delivered by us until each and every claim we have against the customer on account of existing contracts has been paid in full. Claims shall also include receivables from bills of exchange and cheques as well as receivables from current account. If, in connection with payment by way of bill of exchange, a liability to recourse is created against us, retention of title shall only become extinct if it is ruled out that a creditor might have recourse against us.
12.2 If the customer is in default of payment or if it becomes apparent that our claims for payment are at risk due to the customer’s difficult financial situation we shall be entitled to claim the surrender of the goods based on our retention of title.
12.3 In the event of attachments or other third-party interventions the customer undertakes to notify us immediately thereof. The customer shall bear all costs which need to be incurred in order to ensure that such intervention discontinues and to ensure the recovery of the goods delivered, to the extent that such costs cannot be collected from such third party.
12.4 Subject to admissible revocation for good cause, the customer shall be entitled to dispose of the delivered goods within the framework of his ordinary course of business. In particular it shall not be permitted to pledge the goods or use them as security. The customer may only pass on goods that are subject to retention of title to the purchaser if the customer is not in default with respect to his obligations to us.
In the event of resale, as early as with the present the customer shall assign to us all and any claims from such resale, in particular claims for payment, but also other claims relating to the sale, up to the total amount of our invoice (including value-added-tax), irrespective of whether the goods delivered were sold without or after processing.
Subject to our admissible revocation for good cause, the customer shall be entitled to collect the assigned claims on a fiduciary basis. Resale of the receivables within the framework of actual factoring shall be subject to our prior consent. For good cause we shall have the right to notify third-party debtors of the assignment of claims also on behalf of the customer. Notification of the assignment to a third-party debtor shall end the customer’s right to collect the debt. If the right to collect the debt is revoked, we can require the customer to disclose to us the claims assigned as well as the debtors thereof, to provide us with all information required for collection, to hand over all relevant documents and to notify the debtors of the assignment.
Good cause within the meaning of the present stipulation shall include but not be limited to the customer being in default of payment, the customer having suspended his payments, in the event of insolvency proceedings having been initiated against him, bills having been protested or in the event of evidence indicating an over-indebtedness or imminent insolvency of the customer.
12.5 If or to the extent that a retention of title or an assignment of claims is ineffective or unenforceable due to mandatory provisions of foreign law, the security corresponding to retention of title or assignment of claims applicable in this area shall be deemed as agreed. If, according to this, the assistance of the customer is required, he must take all steps necessary in order to establish and maintain the security.
13. Place of Performance, Jurisdiction, Applicable Law
13.1 Unless otherwise agreed, place of performance for delivery, payment and all other obligations arising from the contractual relationship shall be our company’s principal place of business.
13.2 In the event of any dispute arising out of or in connection with the contractual relationship as well as its creation and effectiveness, our company’s principal place of business shall have jurisdiction for both parties (if the customer is a merchant or a public law entity). At our option, we may also bring an action at the customer’s seat.
13.3 The contractual relationship shall be governed by German law. Business with customers abroad shall be subject to the UN Convention on Contracts for the International Sale of Goods (CISG).