General Terms and Conditions (GTC) of Grünewald Feinmaschinenbau GmbH & Co. KG
SALES/REVISION September 2018
- These GTC apply to all contracts in which Grünewald Feinmaschinenbau GmbH & Co. KG is the manufacturer (hereinafter: “Supplier”) and the other contracting party is the purchaser (hereinafter: “Purchaser”). Individual agreements made with the purchaser (including subsidiary agreements, addenda and modifications) always take priority over these GTC. Subject to proof of the contrary, a written contract is necessary for the contents of such agreements and the written confirmation by the supplier is critical.
- The purchaser’s conditions to the contrary do not apply unless the supplier expressly agrees to such in writing. This requirement for agreement always applies, even if the supplier, aware of the purchaser’s GTC, carries out delivery without reserve.
- Delivery conditions only apply with regard to companies pursuant to §§ 14, 310 Para. 1 S. 2 BGB [German Civil Code].
Purchasing of goods
- The Purchaser sends the supplier an order listing which goods should be delivered by the supplier in which quantity and by which delivery date. All conditions, specifications, standards and other documents attached to the order or listed in it are contents of the order.
- The supplier shall review the order and then send the purchaser a binding order confirmation containing all the essential details of the contract (offer pursuant to § 145 BGB). The order confirmation to the purchaser can be written or printed.
- If the purchaser does not object to the order confirmation within three days after receipt in printed form, then the contract for work and materials is considered concluded.
Prices and payment conditions
- Unless otherwise agreed in the individual case, the supplier’s relevant current prices at the time of concluding the contract shall apply, in addition to the legal value-added tax and packaging costs based on the supplier’s location.
- The purchaser is obligated to pay the purchase price, by bank transfer at no charge and without detracting a discount, at most 30 days after shipment of the goods from the plant. The promptness of the payment shall be determined by the supplier’s receipt of the full invoiced sum. If it is, however, stipulated that the delivery of goods should be called off by the purchaser within a certain period after the supplier has indicated readiness for delivery, the supplier shall be authorised to invoice the goods starting from the time of indicating readiness for delivery. In this case, the purchase price shall be due for payment, in contrast to item (1), 30 days after the invoice date.
- If payment is delayed, the purchaser shall be obligated to pay the supplier a contract penalty of 0.3% of the relevant invoiced sum for each work day that payment is delayed up to an upper limit of 5% of this invoiced sum. Moreover, the purchaser shall be obligated to pay the legal default interest of nine percentage points over the relevant base interest rate as well as reimbursement for all damages beyond this caused by the delay including the required internal or external legal prosecution costs. The aforementioned contract penalty from item 1 shall, however, be counted towards this damage caused by delay and default interest.
- The purchaser can only charge against such claims that are undisputed or legally binding.
- The supplier is authorised to assign claims against the purchaser for financial purposes.
Reservation of ownership
- Until the full payment of all current and future claims from the contract for work and materials and an ongoing business relationship (secured claims), the supplier reserves the right to ownership of the goods produced.
- The goods subject to reservation of ownership must not be pledged to third parties nor transferred for security purposes prior to the full payment of the secured claims. The purchaser must promptly inform the supplier in writing if an application to start bankruptcy proceedings has been made or if third parties take hold of (e.g. seize) the goods belonging to the supplier.
- The purchaser is obligated to handle the goods with care; particularly, the purchaser is obligated to sufficiently insure the goods, at its own expense, against fire damage, water damage and theft for the value of the goods in new condition.
- If the purchaser acts in breach of the contract, particularly not paying the purchase price due, the supplier is authorised to rescind the contract according to legal provisions and/or reclaim the goods based on reservation of ownership. The return claim does not constitute the declaration termination; the supplier is rather authorised simply to demand the return of the goods and reserve the right to rescind. If the purchaser does not pay the purchase price due, the supplier may exercise these rights if an appropriate payment deadline has previously been given to the purchaser to no avail or such declaration of a deadline is unnecessary according to legal provisions.
- The purchaser is authorised according to 4.5 c) below, to continue selling and/or processing its goods under reservation to ownership in the orderly course of business. In this case, the following provisions also apply.
- The reservation of ownership extends to products created through processing, mixing or connection for their full value where the supplier is the manufacturer. If in the event of processing, mixing or connection with third-party goods their right of ownership is retained, the supplier shall gain co-ownership in proportion to the invoiced values of the processed, mixed or connected goods. Furthermore, the same applies to the product created as for the goods subject to reservation of ownership.
- For goods measure, the purchaser hereby assigns to the supplier the claims against third parties arising from the resale of the goods or product in total or in the amount of the potential co-ownership proportion as per the previous paragraph. The supplier accepts this assignment. The purchaser’s obligations mentioned in 4.2 also apply with regard to the assigned claims.
- In addition to the supplier, the purchaser also retains the power to collect the claims. The supplier shall be obligated not to collect the claim if the purchaser meets its payment obligations to the supplier, there is no lack of its capability and the supplier does not assert its reservation of ownership by exercising a right as per 4.4. If this is the case, however, the supplier can request that the purchaser identify the assigned claims and their obligors, indicate all the information necessary for collection, submit the relevant documents and inform the obligors (third parties) of the assignment. Moreover, the supplier is authorised in this case to revoke the purchaser’s authorisation for further sale and processing of the goods subject to reservation of ownership.
- The supplier shall be obligated to release assurances held based on this clause to the extent that their value exceeds the claims to be secured by more than 10%.
Delivery deadlines and delivery delay
- The delivery deadline is stipulated on a case-by-case basis.
- Maintaining delivery deadlines requires the timely receipt of all documents to be provided by the purchaser, required authorisations and releases as well as adherence to the stipulated payment conditions and other obligations by the purchaser. If these requirements are not satisfied in a timely manner, then deadlines shall be delayed accordingly; this does not apply if the supplier is responsible for the delay.
- If binding delivery deadlines cannot be maintained for reasons for which the supplier is not responsible (unavailability of capacity), the supplier shall inform the purchaser of this immediately and, at the same time, provide the new expected delivery deadline. If the goods cannot be delivered even within the new delivery period, the supplier is authorised to rescind the contract in part or as a whole; the supplier shall promptly reimburse the purchaser for any service in return already rendered. Unavailability in this sense shall particularly include the delayed delivery to the supplier by its subsupplier if the supplier has completed a congruent hedging transaction, no culpability applies to it nor its subsupplier or the supplier is not obligated to purchase in this case.
- The start of the supplier’s delivery delay is determined by the legal provisions. A reminder from the purchaser is, however, necessary in any case. If the supplier is to blame for a delay in delivery, then the purchaser can request lump-sum compensation for damage caused by delay. Lump-sum compensation equals 0.5% of the net price (delivery value) for each completed calendar week of delay, totalling at most 5% of the delivery value of the goods delivered with delay. The supplier reserves the right to demonstrate that the purchaser incurred no damage at all or substantially less damage than the above lump sum.
- Claim of damage caused by the delay beyond the lump sum in 5.4 shall be precluded. This does not apply to intent or gross negligence on part of the supplier.
Delivery, transfer or risk, acceptance; default of acceptance
- Goods are to be delivered to the location of the supplier, which is the place of fulfilment for the delivery and any subsequent fulfilment. On request and at the expense of the purchaser, the goods shall be shipped to another location (sales shipment). Unless otherwise stipulated, the supplier is authorised to determine the type of shipment (particularly transportation company, transportation route, packaging).
- The risk of incidental loss or deterioration of the goods transfers to the purchaser at the latest upon handover. In the case of sales shipment, the risk of incidental loss or deterioration of the goods and the risk of delay, however, transfers upon shipment of the goods to the carrier, shipper or other specific person or institution for carrying out shipment. If acceptance is stipulated, it determines the transfer of risk. Moreover, the legal provisions of the service contract law apply accordingly to stipulated acceptance. Handover or acceptance applies all the same if the purchaser accepts with delay.
- If the purchaser is in default of acceptance, fails to cooperate or the supplier’s delivery is delayed due to other reasons for which the purchaser is responsible, then the supplier is authorised to request compensation for the resulting damage including additional expenditures (e.g. storage costs). The supplier is authorised to charge a lump-sum compensation of 0.5% of the net price (delivery value) per week, up to 5% total. The demonstration of greater damage and the legal claims (particularly compensation for additional expenditures, appropriate remuneration) remain unaffected; the lump sum is, however, to be counted toward further monetary claims. The purchaser is permitted the right to demonstrate that the supplier incurred absolutely no damage at all or substantially less damage than the above lump sum.
Receiving, partial deliveries
- The purchaser may not refuse to receive goods due to insignificant deficiencies.
- The supplier is authorised to make partial deliveries.
Claims for defects by the purchaser
- The legal provisions apply to the purchaser’s rights for defects of material and title (including incorrect or insufficient delivery as well as improper installation or insufficient installation instructions) unless otherwise stipulated in the following. In all cases, the special legal provisions for final delivery of the unprocessed goods to a consumer remain unaffected, even if the consumer has further processed them (supplier regress as per §§ 445a ff. BGB [German Civil Code]). Claims of supplier regress are precluded if the faulty goods have been further processed by the purchaser or another contractor, e.g. by installing them into another product.
- The basis for the supplier’s defect liability is primarily the agreement concerning the quality of the goods. All product descriptions that are the subject matter of the individual contract or published by the supplier (especially in catalogues or on the website’s homepage) are considered the agreement about the quality of the goods.
- If quality has not been stipulated, it is to be assessed according to legal regulations whether there is a defect or not (§ 434 Para. 1 S. 2 and 3 BGB [German Civil Code]). The supplier, however, does not assume any liability for the statements of the manufacturer or other third parties (e.g. advertising statements).
- The defect claims of the purchaser require that it has complied with its legal inspection and reprimand duties (§§ 377, 381 HGB [German Commercial Code]). If a defect is discovered upon delivery, inspection or at any other point later on, then the supplier is promptly to be informed of this in writing. In any case, apparent defects are to be indicated in writing within three work days of delivery of the goods and, in case of inspection, unidentifiable defects are to be indicated within the same period upon discovery. If the purchaser fails to properly inspect and/or report faults, this precludes the liability of the supplier for faults not reported or not reported in a timely manner or not properly reported as per the legal provisions.
- If the goods delivered are faulty, the supplier can first select whether it shall carry out supplementary performance by correcting the defect (rework) or deliver a defect-free item (replacement delivery). Its right to refuse supplementary performance under the legal requirements remains unaffected.
- The supplier is authorised to make the due supplementary performance dependent of the purchaser paying the due purchase price. The purchaser is, however, authorised to withhold an appropriate portion of the purchase price in relation to the defect.
- The purchaser must indicate to the supplier the time and opportunity needed for the due supplementary performance, particularly to hand over the objectionable goods for testing purposes. In case of replacement delivery, the purchaser must return the faulty goods to the supplier according to the legal provisions. Supplementary performance does not include either the removal of the faulty goods nor their re-installation if the supplier was not originally obligated to install them.
- The expenditures needed for the purpose of testing and supplementary performance, particularly transportation, travel, labour and material costs as well as, if applicable, removal and installation costs, shall be borne by or reimbursed by the supplier based on legal regulations if a defect is in fact present. Otherwise, the supplier can request the reimbursement by the purchaser of the costs resulting from the unwarranted fault correction request (particularly the testing and transportation costs) unless the nonexistent deficiency could not be identified by the purchaser.
- In urgent cases, e.g. risk to operational safety or prevention of excessive damage, the purchaser has the right to correct the fault by itself and request reimbursement by the supplier for the objectively necessary expenditures for such. The supplier shall be informed promptly, if possible beforehand, of any such self-repair. The self-repair right does not apply if the supplier is authorised to refuse appropriate supplementary performance according to the legal provisions.
- If supplementary performance has failed or the reasonable period to be set by the purchaser for supplementary performance has passed to no avail or it is unnecessary according to the legal provisions, the purchaser can rescind the service contract or lower the purchase price. If the defect is insignificant, there is no right to rescind.
- The purchaser’s claims for damage compensation or remuneration for expenditures made in vain can be made for defects only according to item 9 and are otherwise precluded.
- Unless otherwise specified in this GTC including the following provisions, in the event of a breach of contractual and extra-contractual obligations according to the legal obligations the supplier shall be liable.
- The supplier shall be liable for damage compensation – regardless of the legal reason – within the scope of fault-based liability in case of intent and gross negligence. In the event of simple negligence, the supplier shall be liable with the reservation of a more lenient liability standard according to legal provisions (e.g. for care in its own affairs) only
- for damages of injury to life, limb or health as well as
- for damages of not insubstantial breach of an essential contractual obligation (obligation essential for the proper execution of the contract and on whose adherence the contractual partner regularly relies and may rely); in this case, liability is limited to compensation for the predictable, typically occurring damage.
- The liability restrictions resulting from item 9.2 also apply to breaches of obligation by or in favour of persons for whose fault the supplier is responsible according to legal provisions. They do not apply if the supplier maliciously did not disclose a fault or accepted a warranty for the quality of the goods and for the purchaser’s claims according to the product liability law.
- The purchaser can only rescind or terminate the contract due to a breach of obligation not consisting of a defect if the supplier is responsible for the breech of obligation. The purchaser’s free right to terminate the contract shall be precluded. Moreover, the legal requirements and legal consequences apply.
- In contrast to § 438 Para. 1 No. 3 BGB [German Civil Code], the general limitation period for claims of material and title defects is one year from shipment. If acceptance is stipulated, the limitation period begins as of acceptance.
- Other special legal regulations on the limitation period remain unaffected by this (particularly § 438 Para. 1 No. 1,70 Para. 3, §§ 444, 445b BGB [German Civil Code]).
- The purchase right limitation periods above also apply to the purchaser’s contractual and extra-contractual damage compensation claims based on a defect of the goods unless the application of regular legal limitation periods (§§ 195, 199 BGB [German Civil Code]) would lead in the individual case to a shorter limitation period. Damage compensation claims of the purchaser as per item 9 para. 2 sent. 1 and sent. 2 a) as well as pursuant to the product liability law only lapse after the legal limitation periods.
- The location of the supplier is the local court of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
- Oral agreements are not valid. Modifications and additions to this agreement must be in writing. This also applies to any forgoing of the requirement of the written form.
- If individual provisions of this agreement should be invalid or unenforceable, this does not affect the validity of the remainder of the agreement. The invalid or unenforceable provision shall be replaced with such a regulation that most closely matches the effective purpose of the invalid or unenforceable provision.