General Terms and Conditions of GTI-GmbH
- scope of application
Our General Terms and Conditions apply exclusively to companies within the meaning of § 14 BGB (German Civil Code) and legal entities under public law. Deviating general terms and conditions of the customer shall not be recognised by us unless we have expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if we carry out delivery to the customer without reservation despite being aware of the customer’s deviating General Terms and Conditions. This shall also apply if the customer’s general terms and conditions of business provide for acceptance of the order as unconditional acceptance of the customer’s terms and conditions of purchase, or if we deliver after reference by the customer to the validity of the customer’s general terms and conditions of business, unless we have expressly waived the validity of our general terms and conditions of business. The exclusion of the customer’s general terms and conditions shall also apply if our general terms and conditions do not contain a separate provision on individual points. By accepting our order confirmation, the customer expressly acknowledges that he waives his legal objection derived from the conditions of purchase.
- offers, conclusion of contracts, contents of contracts
2.1 Our offers are subject to change without notice unless they are expressly marked as binding or contain express binding commitments or the binding nature has been expressly agreed in some other way. Our offers are invitations to place orders.
2.2 The customer shall be bound by his order as a contract application 14 calendar days – 5 working days in the case of electronic orders – after receipt of the order by us, unless the customer must expect a later acceptance by us.
2.3 A contract is only concluded – also in the course of current business – when we confirm the customer’s order in writing or in text form (i.e. also by fax or e-mail) by order confirmation. The order confirmation is only valid under the condition that any outstanding payment arrears of the customer are settled and that a credit check of the customer carried out by us remains without negative information.
2.4 In case of delivery or service within the binding period of the customer, our order confirmation can be replaced by our delivery, whereby the dispatch of the delivery is decisive.
2.5 We are only obliged to perform from our own stock of goods (stock debt). The assumption of a procurement risk or a procurement guarantee shall not be based solely on our obligation to deliver an item which is only of a specific type.
A procurement risk within the meaning of § 276 BGB (German Civil Code) shall only be assumed by virtue of a separate written agreement using the phrase “we assume the procurement risk”.
- prices, terms of payment, prepayment, right of withdrawal, default, repossession, right of retention, set-off, prohibition of assignment
3.1 All prices are quoted ex warehouse and are always in EURO net, excluding sea or air transport packaging, freight, postage and, if transport insurance has been agreed, insurance costs, plus value added tax to be borne by the customer (insofar as statutory value added tax is not payable) in the respective legally prescribed amount, plus any country-specific charges for delivery to countries other than the Federal Republic of Germany, as well as plus customs duties and other fees and public charges for the delivery / service.
3.2 We reserve the right to determine the mode of shipment to the best of our knowledge, unless there are special instructions from the customer. Additional costs as a result of the customer deviating from Item 3.1. will be charged.
3.3 The price lists valid on the day of the order shall apply to all orders. If installation, assembly, commissioning or instructions have been agreed, the rates valid on the day of the order shall also apply.
We shall be entitled to unilaterally increase the remuneration in the event of an increase in material production and/or material and/or product procurement costs, labour and ancillary labour costs, energy costs, currency fluctuations and/or changes in customs duties, freight rates and/or public levies, if these directly or indirectly influence the production or procurement costs or costs of our contractually agreed services and if there are more than 4 months between the conclusion of the contract and delivery. An increase in the aforementioned sense is excluded insofar as the cost increase for individual or all of the aforementioned factors is offset by a cost reduction for other of the aforementioned factors. If the aforementioned cost factors are reduced without the cost reduction being offset by an increase in other aforementioned cost factors, the cost reduction shall be passed on to the customer within the framework of a price reduction.
If the new price is 20% or more above the original price due to our aforementioned price adjustment right, the customer shall be entitled to withdraw from contracts that have not yet been completely fulfilled. However, he can only assert this right immediately after notification of the increased price.
3.4 Unless otherwise stated in the order confirmation, payment shall be made without deduction within 30 days of the invoice being issued. We are not obliged to accept payments by cheque or bill of exchange. If we accept such payments, they shall only be made on account of performance. We charge discount charges from the due date of the invoice to the expiration date of the bill of exchange as well as bill costs. Interest and costs for discounting or collecting the bills of exchange shall be borne by the customer. If our house bank refuses to discount the bill of exchange, we shall be entitled to demand immediate cash payment by taking back the bill of exchange.
3.5 If, after conclusion of the contract, we become aware of circumstances which cast doubt on the creditworthiness of the customer, in particular if a cheque is not honoured, if the bill of exchange is protested, if agreed payments are discontinued or if payment is delayed, we shall be entitled to demand payment of the entire remaining debt, also from other invoices, even if cheques or bills of exchange have been accepted. In these cases the papers will be returned against immediate cash payment.
3.6 If, after the conclusion of the contract, the financial circumstances of the customer change or deteriorate significantly, which endangers our claim to consideration, or if such a situation of the customer existed at the time of the conclusion of the contract but only became known afterwards, we may refuse performance until consideration has been rendered. This applies in particular to cases in which unsuccessful foreclosure measures, bill protests, cheque protests, personal insolvency applications, moratorium attempts, liquidation or the like have been made. In such cases, we may grant the customer a period of grace for the provision of the consideration or for the I’ll put a security deposit on it. If, under the aforementioned conditions, the consideration or security is not provided despite the setting of a deadline, we shall have the right to withdraw from the contract.
3.7 The customer shall only have a right of retention or set-off with regard to counterclaims which are not disputed or have been legally established. The customer is only entitled to assert a right of retention insofar as his counterclaim is based on the same contractual relationship.
3.8 Field staff (representatives, etc.) are not entitled to collect payments. Payments may only be made to GTI GmbH. Claims against GTI GmbH cannot be assigned to third parties.
- delivery times, delay in delivery
4.1 Binding delivery dates and periods must be agreed expressly and in writing. In the case of non-binding or approximate (approx., approx., etc.) delivery dates and periods, we shall endeavour to observe them to the best of our ability.
4.2 Delivery and/or performance periods shall commence upon receipt of our order confirmation by the customer, in the absence of such confirmation within 5 calendar days of receipt by us of the customer’s order, but not before all details of the execution of the order have been clarified and all other prerequisites to be fulfilled by the customer have been met, in particular agreed down payments or securities and necessary cooperation services have been fully provided. The same applies to delivery dates and performance dates. If the customer has requested changes after placing the order, a new, reasonable delivery and/or performance period shall commence with the confirmation of the change by us.
4.3 If we are in default of delivery, the customer must first grant us a reasonable grace period of at least 14 calendar days, if appropriate. If this period expires fruitlessly, claims for damages due to a breach of duty for which we are responsible – for whatever reason – shall only exist in accordance with the following provisions.
If the customer suffers damage due to our delay, he shall be entitled to claim compensation for the delay to the exclusion of any further claims. It shall amount to a maximum of 5% of the net delivery value which, as a result of the delay, is not delivered and/or paid by us on time or in accordance with the contract. Any further compensation for the damage caused by the delay shall be excluded. This shall not apply in the event of intentional, grossly negligent or fraudulent actions on our part, in the event of claims for delay due to injury to life, limb or health, as well as in the event of an agreement on a fixed delivery date in the legal sense and the assumption of a performance guarantee or a procurement risk in accordance with § 276 of the German Civil Code (BGB) and in the event of mandatory statutory liability.
- force majeure, self-delivery
5.1 If, for reasons beyond our control, we do not receive deliveries or services from our subcontractors for the provision of the delivery or service which is the subject matter of the contract and which is owed to us, or if these deliveries or services are not received, or are not received correctly or not received in time, despite proper and sufficient coverage prior to conclusion of the contract with the customer in accordance with the quantity and quality of our delivery or service agreement with the customer (congruent coverage), or if events of force majeure of not inconsiderable duration (i.e. with a duration of longer than 14 calendar days) occur, we shall inform our customers in good time in writing or in text form.
In this case, we shall be entitled to postpone the delivery for the duration of the hindrance or to withdraw from the contract in whole or in part because of the part still fulfilled, provided that we have fulfilled our above obligation to provide information and have not assumed the procurement risk or a delivery guarantee. Force majeure shall include strikes, lockouts, official interventions, shortages of energy and raw materials, transport bottlenecks or hindrances through no fault of our own, operational hindrances through no fault of our own – e.g. due to fire, water and machine damage – and all other hindrances which, from an objective point of view, were not culpably caused by us.
5.2 If a delivery date or a delivery period has been bindingly agreed and if the agreed delivery date or the agreed delivery period is exceeded as a result of events according to clause 5.1, the customer shall be entitled to withdraw from the contract because of the unfulfilled part after a reasonable grace period has elapsed without result. Further claims of the customer, in particular claims for damages, are excluded in this case.
5.3 The foregoing provision pursuant to Clause 5.2 shall apply mutatis mutandis if, for the reasons stated in Clause 5.1, it is objectively unreasonable for the Customer to continue to adhere to the contract even without a fixed delivery date having been contractually agreed.
- transfer of risk
6.1 Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
The risk of accidental loss or accidental deterioration shall pass to the customer.
in the case of an agreed obligation to collect, with the handover of the items to be delivered to the customer
in the case of an agreed sale by delivery to destination, when the goods to be delivered are handed over to the forwarder/carrier or the person otherwise designated to carry out the shipment,
at the latest, however, upon leaving our warehouse, unless a debt to be discharged at source has been agreed. The above shall also apply if an agreed partial delivery is made.
6.2 If the shipment is delayed as a result,
- that we make use of our right of retention as a result of total or partial default of payment on the part of the customer, or
- for any other reason for which the customer is responsible,
the risk shall pass to the customer at the latest from the date of receipt of the notification of readiness for dispatch or performance vis-à-vis the customer.
- claims for defects
7.1 Recognisable material defects must be reported by the customer immediately after receipt of the goods. Failure to give notice of defects in due time shall exclude any claims by the customer arising from breach of duty due to material defects. This shall not apply in the event of intentional, grossly negligent or fraudulent actions on our part, in the event of injury to life, limb or health or assumption of a guarantee of freedom from defects, or of a procurement risk in accordance with § 276 BGB (German Civil Code) or other legally mandatory cases of liability. The statutory special regulations for final delivery of the goods to a consumer (§§ 478, 479 BGB) remain unaffected.
7.2 Insofar as a defect exists, we shall be entitled to determine the type of subsequent performance, taking into account the nature of the defect and the legitimate interests of the customer. In the event of subsequent performance in the case of defects, we shall only be obligated to provide the necessary The customer shall bear all expenses, in particular transport, travel, labour and material costs, as long as this is not increased by the fact that the item was brought to a location other than the registered office or the commercial branch of the customer to whom the delivery was made. (This number does not apply in the case of recourse according to § 478 BGB).
7.3 The customer’s warranty claims shall become statute-barred after one year. This shall not apply in the event of recourse pursuant to § 478 BGB, in the event of wilful, grossly negligent or fraudulent action on our part, in the event of injury to life, limb or health or assumption of a guarantee of freedom from defects or a procurement risk pursuant to § 276 BGB.
7.4 Our warranty (claims arising from breach of duty due to poor performance in the case of material defects) and the resulting liability are excluded insofar as defects and associated damage are not demonstrably based on faulty material, faulty design, or faulty workmanship, or faulty manufacturing materials or, insofar as owed, faulty instructions for use. In particular, the warranty and the resulting liability due to breach of duty due to poor performance for the consequences of incorrect use is excluded. The above shall not apply in the event of intentional, grossly negligent or fraudulent actions on our part, in the event of injury to life, limb or health, or assumption of a guarantee of freedom from defects, or of a procurement risk in accordance with § 276 BGB (German Civil Code) or in the event of liability in accordance with a legally mandatory liability event.
7.5 We do not assume any warranty according to §§ 478, 479 BGB if the customer has processed or modified the products delivered by us under the contract, unless this corresponds to the contractually agreed purpose of the products.
The recognition of breaches of duty in the form of material defects shall always require the written form.
- liability for damages
8.1 We shall only be liable for damages caused by intentional or grossly negligent conduct on our part, on the part of our employees, legal representatives and vicarious agents or based on a breach of material contractual obligations (cardinal obligations). Such an essential contractual obligation shall always exist if its achievement is essential for the proper execution of the contract and if the customer can regularly rely on its compliance.
8.2 The above limitation of liability applies to contractual as well as non-contractual claims. Liability for damages resulting from injury to life, body or health is not excluded or limited. Likewise, any liability for claims arising from a guarantee given by the contractor for the quality of the description and for claims under the Product Liability Act shall remain unaffected. For damages caused by delay, there is a special provision in clause 4.3.
- securing retention of title
9.1 The title to the delivered goods shall remain reserved until receipt of all payments arising from this contract, in the case of an ongoing business relationship until receipt of all payments arising therefrom. This shall also apply if our claims have been included in a current account and the balance has been struck and acknowledged, as well as for future claims.
9.2 The customer is obliged to treat the delivered goods with care, in particular to store them properly. He is obliged to insure the goods at his own expense against fire, water and theft at replacement value.
9.3 In the event of attachments and other interventions by third parties, the customer must notify us immediately in writing in order to safeguard our rights (e.g. legal action under § 771 ZPO (German code of civil procedure)). Insofar as the third party is not in a position to reimburse us for the judicial or extrajudicial costs of an action pursuant to § 771 ZPO (German code of civil procedure), the customer shall be liable for the loss incurred by us.
9.4 The customer is entitled to resell and use delivered goods in the ordinary course of business; however, he hereby assigns to us all claims against his customers or third parties arising from the resale in the amount of the value of the reserved goods, irrespective of whether the delivered goods have been resold with or without agreement. The value of the reserved goods shall be the final invoice amount agreed with us (including VAT). If the resold reserved goods are co-owned by us, the assignment of the claims shall extend to the amount corresponding to our share of the co-ownership. The customer is not entitled to any other sale of the goods, in particular pledging or transfer by way of security.
9.5 The customer remains authorised to collect the claim from the resale even after the assignment. Our authority to collect the claim ourselves shall remain unaffected thereby. However, we undertake not to collect the claim as long as the customer 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. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs his debtor of the assignment.
9.6 If the reserved goods are not immediately paid for by the third party purchaser upon resale, the customer is obliged to resell them only subject to retention of title. The entitlement to the reserved goods expires if the customer ceases payment or defaults on payment to us.
9.7 The processing or transformation of the delivered goods by the customer shall always be carried out for us as manufacturer, but without any obligation on our part. The customer’s expectant right to the delivered goods shall continue in respect of the transformed item. If the delivered goods are further processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of the delivered goods to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the goods delivered subject to reservation of title.
9.8 If delivered goods are inseparably mixed, blended or combined with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of the delivered goods to the other objects at the time of mixing, blending or combining. If the process is carried out in such a way that the customer’s item is to be regarded as the main item, it is hereby agreed that the customer shall transfer proportionate co-ownership to us and keep the sole or co-ownership for us free of charge.
9.9 The customer also assigns to us those claims to secure our claims against him in the amount of the value of the reserved goods with all ancillary rights and priority over the remainder which accrue to him against a third party through the combination of the reserved goods as an essential component with a property, ship, ship under construction or aircraft of another party.
9.10. The customer also assigns to us those claims to secure our claims against him in the amount of the value of the reserved goods with all ancillary rights and priority over the remainder, which he acquires when selling his own property, ship, ship under construction or aircraft, with which he has connected the reserved goods as an essential component, to a third party.
9.11. If the customer has already assigned claims from the resale of the products delivered or to be delivered by us to third parties, in particular on the basis of genuine or false factoring, or has made other agreements which could affect our current or future security rights, he must notify us immediately. In the event of a false factoring, we shall be entitled to withdraw from the contract and demand the return of products already delivered.
9.12. We undertake to release the securities to which we are entitled at the customer’s request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10 % or the nominal amount by more than 50 %; the choice of the securities to be released shall be at our discretion.
9.13. In the event of any breach of contract on the part of the customer, in particular default in payment, we shall be entitled to take back all reserved goods after rescission of the contract. In this case, the customer shall be obliged to surrender the goods without further ado and shall bear the transport costs required for taking them back. The taking back of the reserved goods by us shall constitute a withdrawal from the contract. If we withdraw from the contract, we shall be entitled to utilise the reserved goods. The proceeds from the sale, less reasonable costs of the sale, will be offset against the claims owed to us by the customer from the business relationship. In order to determine the stock of the goods delivered by us, we may enter the customer’s business premises at any time during normal business hours. The customer must inform us immediately of any access by third parties to the reserved goods or to claims assigned to us.
- applicable law, place of performance, place of jurisdiction
The law of the Federal Republic of Germany applies to this contract. 24955 Harrislee is the place of performance and jurisdiction for all services arising from this contract.
11.1 Insofar as trade clauses are agreed in accordance with the International Commercial Terms (INCOTERMS), the INCOTERMS 2010 shall apply.
11.2 All agreements, subsidiary agreements, warranties and amendments to the contract must be made in writing. This shall also apply to the waiver of the written form agreement. The priority of the individual agreement in written, textual or oral form (§305b BGB) remains unaffected.