GTC (General Terms and Conditions of Business)
GTC (General Terms and Conditions of Business) date June 12, 2014
1. All offers, deliveries, services and sales made by the seller are made without exception and exclusively on the basis of these terms and conditions. The terms and conditions shall also apply to all further business relationships, even if no subsequent agreement is made. These terms and conditions shall apply no later than when the object of the contract is received or the service is accepted. Counter-confirmations of the seller referring to the seller's terms and conditions are hereby expressly contradicted.
2. All agreements made between the seller and the buyer for the purpose of formulating the contract must be set down in writing in this contract.
3. Changes to the sales tax identification number, company name or address must be reported to us unrequested and immediately in writing. If you do not comply with your obligation to provide information, you shall be obligated to compensate the seller for all resulting tax disadvantages.
II. Offer and Conclusion of Contract:
1. All offers of the seller are non-binding and subject to alteration.
2. The buyer shall be bound by the purchase order for six weeks. A contract is not concluded until the buyer has signed the order confirmation transmitted to the buyer from the seller in writing or electronically and returned it in writing or electronically to the seller. The same shall apply to ancillary agreements, additions or modifications. The written or electronic confirmation of the seller shall apply exclusively to the scope of delivery as well as the nature and dimensions of the article of sale.
3. Other performance data, weights, drawings, dimensions and illustrations shall only be binding if expressly agreed in writing.
4. The seller's employees are not authorized to make oral ancillary agreements or provide verbal undertakings which go beyond the content of the written contract.
5. Any transfers of rights and obligations of the buyer arising from the contract require the seller's written consent.
1. Prices are quoted ex works in Mühldorf.
2. The seller shall be bound to the prices quoted in its offers for four months after the date they were given. The valid prices are those quoted in the seller's order confirmation. The relevant statutory sales tax must be added to these prices. If the period between conclusion of the contract and the agreed delivery date is longer than four months, price changes are permitted and the seller's valid price at the time shall apply.
3. The buyer shall be responsible for the costs of transport insurance, shipping, transfer, forwarding, customs and official fees.
1. The seller's invoices shall be due for payment in cash without deduction upon transfer of the purchase item, but in any case no later than upon receipt of written notification of provision and delivery or transmission of the invoice, unless otherwise agreed in writing.
2. Money orders, cheques and bills of exchange shall only be accepted if express agreement is given and only for the purpose of payment, taking into account all collection and discount charges.
3. The seller shall be entitled to apply the buyer's payments to older debts first, despite contrary terms of the buyer. The seller shall inform the buyer regarding the assignment of the payment. If costs and interest have accrued, the seller shall be entitled to apply payments first to the costs, then to the interest and finally to the main service.
4. The payment is not considered to have been made until the seller has access to it. Payment by cheque is considered to have been made when the cheque is cached.
5. If the buyer is in arrears, the seller shall be entitled from that point forward to demand interest at a rate of 8% as compensation for damages if the customer is a consumer, or a flat-rate compensation for damages if the customer is an entrepreneur.
A lower rate or amount shall be applied if the buyer demonstrates that the seller's loss is lower. The seller is permitted to demonstrate greater damage. Claims to interest on arrears derived from §§ 352, 353 HGB (German Commercial Code) shall not be affected by this flat-rate compensation for damages.
6. If the seller becomes aware of circumstances which cast doubt on the buyer's creditworthiness, especially if the buyer stops making payments or a cheque is not honoured, or if the seller becomes aware of other circumstances which cast doubt on the buyer's creditworthiness, the seller shall be entitled to declare the entire outstanding debt due for payment, even if cheques have been accepted. The seller shall furthermore be entitled in the preceding case to demand prepayments or security deposits.
7. The buyer shall only be entitled to offsetting if the counter-claims are uncontested or have been recognized by declaratory judgement. The buyer shall only be entitled to rights of retention if they are uncontested or have been recognized by declaratory judgement.
The buyer shall only be entitled to a reduction in price, even if notifications of defects are made or counter-claims are asserted, if the counter-claims are uncontested or have been recognized by declaratory judgement.
With the exception of the objection to non-fulfilment of the agreement, the buyer shall be entitled to claim right of retention only if such right is based on claims derived from the same contractual relationship.
The buyer shall however also be entitled to right of retention due to counter-claims from the same contractual relationship.
8. If instalment payments have been agreed between the seller and buyer, and if the buyer is a juridical person or if the credit pursuant to the content of the contract is intended for an independent professional activity already exercised by the buyer, the entire outstanding debt shall be due without consideration of the maturity of any bills of exchange and including any accrued interest agreed on up until the maturity date if the buyer is in arrears for the full amount or part of at least two successive instalment payments, and the amount in arrears is at least ten per cent of the nominal amount of credit or the instalment payment price, or five per cent if the term of the credit contract is more than three years. Furthermore, the entire outstanding debt shall become due if the buyer essentially stops making payments or if insolvency proceedings or bankruptcy proceedings have been filed against the buyer's property.
The same applies if the buyer is a natural person if the credit is intended for engaging in a commercial or independent professional activity and the net credit amount or cash price exceeds 50,000.00 EURO.
Instead of demanding the remainder of the debt, the seller may, without prejudice to its rights from retention of title, set a grace period of two weeks for payment of the outstanding amount in writing with notification that in the event of non-payment within the grace period the seller will refuse performance of the contract. After the grace period has elapsed, the seller shall be entitled to withdraw from the contract by written or electronic notice or to demand compensation for damages for non-performance. Any claim for performance shall then be excluded.
9. The seller may terminate an agreement made between the seller and buyer regarding instalment payments which does not fall under number 8) and demand payment of the outstanding debt if:
a) The buyer is in arrears for the full amount or part of at least two successive instalment payments, and the amount in arrears is at least ten per cent of the nominal amount of credit or the instalment payment price, or five per cent if the term of the credit contract is more than three years and
b) the seller has set a grace period of two weeks for payment of the outstanding amount in writing with notification that in the event of non-payment within the grace period the seller will demand the entire outstanding debt, and the grace period has elapsed without payment being made. If the seller terminates the contract and demands payment of the outstanding debt, the outstanding debt shall be reduced by the interest and other term-dependent costs of the credit which are allotted to the time after maturity of the outstanding debt in the case of graduated calculation. Instead of demanding the remainder of the debt, the seller may, without prejudice to its rights from retention of title, set a grace period of two weeks for the buyer in writing. After the grace period has elapsed, the seller may withdraw from the contract by written or electronic notice. Any claim for performance shall then be excluded.
V. Delivery and Delayed Delivery:
1. Delivery dates and delivery periods, which may be agreed as binding or non-binding, must be set in writing.
Delivery periods normally begin upon conclusion of the contract. If changes or additions to the contract are agreed subsequently, the delivery periods shall start to run again upon conclusion of the agreement regarding changes or additions to the contract, unless otherwise agreed.
2. After a non-binding delivery date has passed without delivery, or after a delivery period has elapsed, the buyer may submit a written demand for delivery within a reasonable amount of time. In addition to delivery, the buyer may also demand compensation for any damage incurred due to the delay. This claim to payment of compensation for damages is excluded in case of slight negligence on the part of the seller. After the grace period has elapsed, the buyer shall be entitled to withdraw from the purchase contract by written notice or to demand compensation for damages for non-performance. This claim to payment of compensation for damages is excluded in case of slight negligence on the part of the seller. If the seller is a juridical person under public law, a special fund under public law, or a merchant for whom the agreement forms part of his or her commercial enterprise, he/she shall only be entitled to claims for compensation for damages in the event of wilful intent or gross negligence on the seller's part. Any claim for delivery shall be excluded in these cases. If delivery becomes impossible for the seller while it is in delay, the seller shall nevertheless be liable according to the rules above unless the damage would also have occurred with on-time delivery.
3. If the seller is responsible for not meeting contractually binding periods and dates, or is late, the buyer shall be entitled to claim compensation for delay in the amount of 1/2 per cent for each complete week of delay, but no more than a total of 5% of the value of the invoice for the deliveries and services affected by the delay. Any more extensive claims are excluded unless the delay is due to at least gross negligence on the part of the seller.
4. The seller shall not be responsible for delays in delivery and services due to force majeure or events which significantly impede delivery or make it impossible for the seller, including especially strikes, lockouts and administrative orders, etc. which affect the seller, the seller's suppliers or their sub-suppliers, including also contractually binding periods and dates. Therefore no delay in delivery can occur. The seller shall be entitled in this case to postpone the delivery or service by the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract entirely or in part in regard to the unfulfilled part.
5. If the hindrance in the case of number 4 lasts longer than four months, the buyer shall be entitled, after having set a reasonable grace period, to withdraw from the contract in terms of the part that has not been fulfilled yet. If the delivery time is extended or if the seller becomes free of its obligation, the buyer cannot derive any claims for compensation for damages from this. The seller can only appeal to the circumstances described above if it notifies the buyer without delay.
6. The manufacturer reserves the right to changes in design and shape, deviations in colour and changes in the scope of delivery during the delivery period provided there is no significant change to the purchase item that is unreasonable for the buyer.
7. Details in descriptions which are valid upon conclusion of the contract regarding scope of delivery, appearance, services, dimensions and weights, consumption of operating materials and operating costs, etc. of the purchase item are part of the contract. They should be considered as approximate and not as a guarantee promise. Their purpose is rather to determine whether the purchase item is free of defects in the sense of the legal guarantee regulations unless explicit assurance is given.
8. If a delivery of the seller is late despite the seller having placed the order in a timely manner, the seller will be granted a reasonable extension to the delivery period. The reasonable extension to the delivery period shall be measured according to the time of the delay. In these cases the buyer cannot appeal to the rights granted above.
9. If the seller uses symbols or numbers to designate the order or the ordered purchase item, no rights can be derived from that alone.
VI. Transfer of Risk:
1. Risk passes to the buyer as soon as the purchase item has been transferred to the person responsible for transport or has left the seller's factory for the purpose of shipping. § 447 II of the BGB (German Civil Code) shall remain unaffected. If shipping is not possible through no fault of the seller, risk is transferred when the buyer is notified that the purchase item is ready to ship. The same applies in the case of culpable delay of acceptance.
3. The seller is entitled to make partial deliveries at any time. These partial deliveries must be paid after delivery on a pro-rated basis.
4. If delivery is made in the winter months, the customer is obligated to wash the article of sale immediately after it is delivered to prevent corrosion damage, especially for galvanized parts. Any related claims to compensation for damages are based on improper handling of the article of sale and are excluded. During the galvanization process it sometimes happens that the thermal expansion in the zinc bath causes a deformation in the tank and the parts, which results in a rough surface. This has no detrimental effect on function or quality. Claims for compensation for damages in this regard are excluded.
1. The buyer has the right to test the purchase item at the agreed acceptance location within eight days after the notification of provision has been received.
2. The buyer agrees to accept the purchase item within a period of eight days from notification of provision.
3. Any trial run before acceptance shall be restricted to the limits of customary trial runs, no more than 20 km.
4. If the seller remains behind schedule with acceptance of the purchase item longer than 14 days after notification of provision has been received and if this is due to wilful intent or gross negligence, the seller can set a grace period of 14 days for the buyer with notification in writing that after this grace period expires the seller will refuse acceptance. After the grace period has elapsed, the seller shall be entitled to withdraw from the contract by written notice or to demand compensation for damages instead of performance. There is no need to set a grace period if the buyer seriously and definitively refuses acceptance or is obviously not capable of paying the purchase price within this time. In this case no provision shall be required either.
5. If the buyer demands compensation for damages, it shall be a flat rate of 15% of the net purchase price. It shall be higher if the seller demonstrates a greater loss or lower if the buyer demonstrates a lower loss.
6. If the buyer or a designated representative of the buyer has control over the purchase item during a trial run before acceptance, or if it is controlled by previously designated persons, the buyer shall be responsible for any damage to the purchase item during the trial run.
VIII. Retention of Title
1. The purchase item shall remain the property of the seller until the receivables to which the seller is entitled on the basis of the purchase contract have been completely fulfilled . This retention of title shall continue for all receivables which the seller acquires against the buyer in connection with the purchase item now or subsequently, such as receivables for repairs, replacement parts, accessories and deliveries of operating materials, adjustment expenses and insurance costs as well as other services.
2. If the seller is a juridical person under public law, a special fund under public law, or a merchant for whom the agreement forms part of his or her commercial enterprise, the retention of title shall also extend to receivables against the buyer to which the seller is entitled for any legal reason, now or in the future. In this case the retention of title shall not expire until the buyer has paid all receivables resulting from the business relationship, in particular until the buyer has settled the account balance (current account reservation). At the seller's request, the buyer is obligated to waive retention of title if the buyer has satisfied all receivables related to the purchase item and other appropriate security is in place for the remaining receivables from the business relationship.
3. The seller shall have the right to possess the vehicle title throughout the duration of the retention of title. The buyer agrees to submit a written request to the licensing office for the vehicle title to be issued to the seller.
4. If the buyer is in breach of contract, in particular if the buyer is in default with payments or does not meet his/her obligations derived from retention of title, the seller shall be entitled to recover possession of the reserved item or demand assignment of the claims to surrender against third parties. Recovery of possession or attachment of the reserved item shall not be considered as withdrawing from the contract. This shall apply if the seller is a juridical person under public law, a special fund under public law, or a merchant for whom the agreement forms part of his or her commercial enterprise.
5. If the buyer does not fall under number 2), the following shall apply: If the buyer is in breach of contract
according to number 4), meaning in particular payment default, the seller shall be entitled to recover possession of the reserved item at the seller's expense. Recovery of possession and attachment of the reserved item by the seller may already be considered rescission of the contract in accordance with § 503 paragraph 2 sentences 4-5 BGB (German Civil Code).
6. Rights of retention of the buyer not derived from the purchase contract are excluded.
7. For as long as retention of title exists, any divestment, pledging, transfer of ownership by way of security, leasing or other surrender of or change to the purchase item which could negatively affect the seller's security interest is only permitted with prior written consent of the seller.
8. In cases where third parties access the goods subject to reservation of title, particularly in case of attachments, the buyer shall refer to the seller's ownership and shall immediately notify the seller in writing or electronically so that the seller can assert its rights of ownership. If the third party is not capable of reimbursing the seller for judicial and extra-judicial costs incurred, the buyer shall be responsible for them.
9. For the duration of retention of title for the purchase item, the buyer must take out separate comprehensive insurance or a similar insurance policy that protects against the same risks with a reasonable deductible.
The insurance must be taken out with the stipulation that the seller is entitled to the rights from the insurance contract.
The buyer hereby authorizes the seller to apply for an insurance certificate for comprehensive insurance and to obtain information about the insurance relationship noted above. If the buyer does not fulfil this obligation, the seller may take out the separate comprehensive insurance or an insurance policy similar to it at the buyer's expense, disburse the insurance premium and collect it as part of the receivables under the purchase contract.
10. The buyer is obligated throughout the duration of retention of title to maintain the purchase item in good condition and to have all scheduled maintenance tasks and required repairs performed immediately by the seller or by a workshop recognized by the seller for servicing the purchase item, with the exception of emergencies.
11. Processing or transformation of the reserved item shall be performed exclusively for the seller as manufacturer, but without any obligation for the seller. If (co)ownership expires due to amalgamation, it is agreed now already that the seller's (co)ownership of the unitary object shall be passed to the seller on a pro-rated basis with respect to value (invoiced value).
The buyer grants the seller (co)ownership free of charge. Items to which the seller enjoys (co)ownership are referred to below as reserved items.
12. Pledges or assignment as security of reserved items are not permitted. The receivables resulting from further sale or some other legal reason (insurance, unlawful act) with regard to the reserved item (including all receivables relating to the current account balance) are hereby assigned now by the buyer to the seller to the full extent, for the sake of precaution. The seller irrevocably authorizes the buyer to collect receivables assigned to the seller for the seller's account and on the buyer's own behalf. This authorization to collect claims can only be revoked if the buyer does not properly meet his/her payment obligations. At the seller's request, the buyer must provide the necessary information for collecting the assigned receivables to the seller and notify the customers of the assignment as well.
If a product sold to a consumer is defective at the time when risk is transferred, the mandatory legal rights in place protecting the consumer shall not be affected by the following conditions of business with the exception that the contracting parties agree to a warranty period of one year for the consumer for delivery of used goods.
1. If the article of sale is defective at the time when risk is transferred, the seller shall at its discretion deliver a replacement or rectify the item. Multiple improvements are permitted.
2. The buyer's warranty claims shall expire one year after delivery of the goods. § 438 I no. 2 BGB (German Civil Code) and § 634 a I no. 2 BGB remain unaffected.
3. If the seller's operating and maintenance instructions are not followed or if changes are made to the purchase item, parts replaced or consumable materials used that do not meet the original specifications, any warranty shall be rendered null and void if the buyer does not refute a substantiated assertion that it was one of these circumstances which caused the defect.
4. The buyer must notify the seller immediately, but in any case within one week after receipt of the purchase item of any defects. Defects that cannot be discovered by means of a careful check during this period must be reported to the seller in writing immediately after they are discovered. The article of sale must be kept in the condition it was in when the defect was discovered and ready for inspection by the seller.
5. If the rectification or replacement delivery fails after a reasonable period, the buyer may at his or her discretion demand a reduction in the purchase price or declare rescission of the contract. A rectification shall be considered to have failed after the third unsuccessful attempt, unless there is some other special consideration due to the nature of the product or the defect or other circumstances.
6. Liability for normal wear is excluded.
7. Only the direct buyer is entitled to warranty claims against the seller. They are not transferable.
8. If the buyer determines the design or specifies the material, warranty claims shall not extend to any resulting defects.
9. The stipulations above shall apply in accordance with section IX) only to contracts for deliveries of newly manufactured products and services. For contracts regarding delivery of used items, the delivery is made with the exclusion of any warranty.
In the event of a negligent breach of contract by the seller, the seller's liability shall be limited to the foreseeable, direct, average damages typical for the contract in consideration of the nature of the product. The same applies to slightly negligent contractual violations of the seller's legal representatives and vicarious agents.
The seller shall not be liable to entrepreneurs in the event of a slightly negligent violation of insignificant contractual obligations.
The limitations of liability above do not refer to claims of the customer derived from product liability. Furthermore the liability restrictions shall not apply to us in the case of damage to body and health or in the case of loss of life of the customer for which the seller is responsible.
Claims to compensation for damages to the customer for a defect expire one year after delivery of the product. This shall not apply if the seller can be accused of malicious intent.
XI. Permission for Data Processing/Confidentiality:
The seller shall be entitled to process all legally protected data related to the buyer within the confines of legal requirements. Information provided to the seller in connection with purchase orders shall not be considered as confidential unless otherwise indicated in writing.
XII. Design Changes:
The seller reserves the right to make changes to the design at any time, but shall not be obligated to make such changes as well to items that have already been delivered.
XIII. Applicable Law:
These terms and conditions of business and all legal relationships between the seller and buyer shall be governed by the law of the Federal Republic of Germany. The provisions of UN sales law shall not apply.
XIV. Place of Performance and Legal Venue:
1. The place of performance is Mühldorf, Germany.
2. If the buyer is a fully qualified merchant as defined by the German Commercial Code, a juridical person under public law or a special fund under public law, the relevant court shall be Mühldorf District Court or Traunstein Regional Court, depending on the amount in dispute.