GTC AUTOPSTENHOJ GmbH
I. General
1. All deliveries and services are based exclusively on these general terms of business. Deviating terms shall apply only if expressly agreed.
2. We do not acknowledge any terms and conditions of the client that deviate from our general terms and condition of business unless we expressly agree to them in writing.
Our general terms and condition shall apply exclusively even if we make a delivery or provide a service to the client without reservation and with knowledge of the existence of opposing or deviating terms and conditions of the client.
II. Offers
1. Orders or commissions are binding for the client; the contract is concluded at our choice by a written order confirmation or by executing the order or performing the commission. Any offers we make must be accepted without undue delay and are always non-binding. All offers are subject to our ability to deliver and the right to prior sale remains reserved in all cases.
2. Agreed delivery dates are only binding in cases where the supplier has granted the client a credit, if prepayment is received by the supplier’s bank in good time, or if a letter of credit has been drawn up in good time.
3. Unless expressly stipulated as binding, the records related to the offer, such as catalogues, other product information, illustrations, drawings, details on weights and dimensions are only approximate indications. The supplier reserves all proprietary rights and copyright for all cost estimates, drawings and other records, which may be made accessible to third parties only with the consent of the supplier.
III. Scope and delivery
1. The written order confirmation from the supplier is decisive for the scope of delivery. Any side agreements and amendments require written confirmation from the supplier. A waiver of the written form requirement shall be effective only if made in writing with an express reference to this clause.
2. Protective devices will only be delivered together with the goods if so agreed. The client shall bear the costs.
IV. Pricing and payment terms
1. Pricing
Prices are ex works and exclusive of packaging, insurance, assembly and VAT. Packaging and shipping will be provided to the best of our abilities, however, without forming a binding obligation. Packaging will be calculated as costs. The client shall bear all shipping costs. If the delivery is to take place more than 30 days after conclusion of the contract, the prices applicable on the date of shipping shall apply; those prices must comply with section 315 of the German Civil Code (BGB) and take the previous ratio of the originally agreed price to the costs incurred by the customer into account.
2. Payment terms
Deliveries to any new customers are generally made subject to cash on delivery. Invoices are due immediately without any cash discounts. If payments are deferred or paid later than the date due, we shall charge default interest at the rate of 2% per month and reserve the right to assert other rights without requiring a formal notice of default to be issued.
In addition, dunning notices are sent subject to a separate dunning fee.
Payments may be withheld only based on uncontested counterclaims or counter-claims established with final and binding effect. In all other instances, the parties shall not be entitled to withhold payment. This also applies to the commercial right of retention derived from sections 369 to 372 of the German Commercial Code (HGB). Any offset of claims on the part of the client against claims asserted by us is not permitted unless the claim to be offset is uncontested or established with final and binding effect. Cheques are accepted only as payment. Payment with a bill of exchange requires a special agreement. They will be accepted only within the scope of those agreements.
When accepting payment by bill of exchange, the related acceptance and discounting costs shall be borne by the client.
No responsibility for the timely presentation of bills of exchange in secondary locations, nor for any guarantee for the timely submission of the protest will be accepted.
The ownership of the delivered object will be transferred to the client after receipt of all payments or redemptions of all bills of exchange.
Until such time of transfer, the client shall insure the delivered object against fire and water damage.
V. Delivery period, damages for non-acceptance
1. The delivery period shall start upon dispatch of the order confirmation, but not before the client has produced the records, approvals or releases and payment of any agreed deposits.
2. The delivery period shall be deemed to have been adhered to if the delivery item has left the factory or if notice of readiness for dispatch is given prior to the expiry of that period.
If the agreed delivery period is exceeded, the client must first send the supplier a written request for delivery subject to a grace period of at least three and not more than six weeks, provided that the goods were custom-made for the client or are not generally kept in stock by the supplier.
Any further rights may be asserted only thereafter.
3. In the event of unforeseen circumstances beyond the control of the supplier - irrespective of whether they occur at the factory of the supplier or of their sub-suppliers - the delivery time shall be reasonably extended, e.g. in the event of business disruptions, delays in the supply of essential raw materials and construction materials, provided that such obstacles demonstrably and significantly affect the completion or delivery of the delivery item.
The aforementioned circumstances shall not be attributable to the supplier even if they occur during a period of default.
In important cases, the supplier will inform the client about the beginning and end of such obstacles as soon as possible.
4. The supplier shall also be entitled to make and calculate delivery through sub-suppliers.
5. The supplier shall be entitled to deliver goods up to five working days before the agreed date of delivery. The supplier shall be entitled to make partial delivery and will cover all related additional costs.
6. If dispatch is delayed at the request of the client, the invoicing and payment shall not be permitted to suffer any postponement.
In this case, the day on which readiness for dispatch is notified shall be deemed to be the date of delivery.
As from the date of notice of readiness for dispatch, the storage costs shall be charged to the client by means of a handling and storage fee calculated at the rate of 2% of the total order value for each month or part thereof, if the products are stored at the premises of the supplier for a period of more than 14 days after the agreed delivery date.
Once the goods are notified as ready for dispatch, the risk passes to the client pursuant to Chapter VI.2.
7. Any claims by the client based on delayed or late delivery are excluded, unless the delay is caused intentionally or with gross negligence by the supplier.
Any claim shall be limited to a maximum of 10% of the value of the goods.
If the delivery item is custom-made for the client or not generally kept in stock by the supplier, the client may exercise its right of cancellation only if it can show that the purpose of the purchase of the accepted goods would be essentially frustrated despite the delay.
8. If the goods are custom-made and can therefore not be disposed of in any other way, the damage to be reimbursed by the client in the event of unfounded failure to accept the goods shall be equivalent to the full net order value pursuant to sentence 1 of Chapter IV.1.
If the supplier claims any other damage, that damage shall amount to 30% of the net order value pursuant to sentence 1 of Chapter IV.1.
If an order for standard products already produced or in the process of being produced is cancelled by the client with the consent of the supplier, up to 50% of the net order value pursuant to sentence 1 of Chapter IV.1 shall be payable as compensation for lost profit and costs incurred.
If an order for specialist products already produced or in the process of being produced is cancelled by the client with the consent of the supplier, up to 80% of the net order value pursuant to sentence 1 of Chapter IV.1 shall be payable as compensation for lost profit and costs incurred.
VI. Transfer of risk and acceptance
1. The risk of accidental loss or deterioration shall pass to the client at the latest upon transfer of the delivery item to the freight forwarder/carrier or dispatch of the delivery item ex works of the supplier, even if partial delivery is made or if the supplier has undertaken to also provide other services, e.g. shipping costs or delivery and assembly on site.
Upon the request and at the cost of the client, the supplier may insure the delivery against theft, breakage, transport, fire and water damages as well as other insurable risks.
2. In the event of a special written agreement with the client covering the installation, assembly or fitting of the goods by the supplier or its subcontractors, wherein the supplier expressly assumes the commodity risk until final installation, assembly or fitting, the client shall insure the goods or cause the goods to be insured or co-insured by a third party until completion of the installation, the assembly or the fitting by the supplier or its subcontractors (e.g. by the owner-builder or by a general contractor in the form of a Contractor’s All Risk/Erection All Risk-Insurance), in which case the supplier shall be the beneficiary of the insurance.
3. If shipping is delayed due to circumstances beyond the control of the supplier, the risk of accidental loss or deterioration shall pass to the client on the date of notice of readiness for dispatch; the supplier is, however, obliged to insure the goods at the expense of the client, if the latter so requests.
4. Delivered objects shall be accepted by the client even if they display negligible defects, irrespective of the rights stated in Chapter VIII.
5. Partial deliveries are permitted.
VII. Retention of title
1. We reserve ownership in the delivery item until receipt of all payments under the business relationship with the client.
Retention of ownership also extends to the acknowledged balance if we book our receivable amounts against the client in a current account (current account reservation).
2. The client is entitled to sell the delivery item in the normal course of business.
3. Any reworking or processing of the delivery item shall be done on our behalf. We shall obtain ownership in the new product, and the client shall safeguard this product on our behalf.
4. If the goods are inseparably mixed, blended or combined with other goods, we shall obtain joint ownership of the new unit up to the proportion of the value our goods in relation to the value of the mixed or combined goods at the time of the mixing or blending.
5. If we acquire new ownership in cases pursuant to the aforementioned paras. 3. or 4., we transfer such ownership to the client subject to full payment of our claims as stipulated in the aforementioned para. 1.
6. If an item delivered subject to retention of title is a fundamental part of a piece of land owned by the client, the client grants us the right to remove the item subject to the resolutive condition until full settlement of our claims pursuant to para. 1.
The costs of the removal in such cases shall be borne by the client.
If the parcel of land which has become a fundamental part of the delivered item is not the property of the client, the client undertakes to ensure by contract a right of removal for our benefit vis-à-vis the landowner.
7. The client assigns all claims from the resale of the delivery item or items produced by reworking or processing to us.
The client assigns claims from the resale of goods of which we have obtained joint ownership through mixing or blending with other goods, to us at first-ranked partial amount corresponding to our joint ownership share in the sold goods.
If the client sells goods which are our property or which we jointly own together with goods which are not our property or which we jointly own for a total price, the client assigns a first-ranked partial amount in this total claim corresponding to the share in the delivery item to us.
8. Subject to revocation at any time, the client is authorised to collect the assigned claims from the resale.
At our request, the client is obliged to name the debtors, notify them of the assignment and surrender the notice of assignment to us.
The assignment will not be disclosed if the client complies with its payment obligations.
If the value of our existing securities exceeds the claims by more than 30%, we shall release the securities of the client’s choice at its request.
9. If the client does not intend to immediately exercise its right to resell the delivery item, or at our request, the client shall insure the goods delivered subject to retention of title to a reasonable extent against the customary risks at its expense and assign the claims under the insurance to us.
We shall be entitled to pay the insurance premiums at the expense of the client.
10. If any seizures or any other third-party intervention occur, the client shall inform us without undue delay in writing, so that we can take legal action according to section 771 of the German Civil Procedure Code (ZPO).
If the third party is not capable of refunding the judicial and extra-judicial costs of legal action according to section 771 of the German Civil Procedure Code, the client shall be liable to us for the outstanding amount.
11. In the event of the existence or conclusion of a loan agreement subject to a pledge of the company inventory, the client undertakes to secure our ownership rights in the delivery items not yet fully paid with the credit institute concerned.
VIII. Complaints
Obvious defects shall be notified by the client to the supplier in writing within one week of receipt of the goods at the latest.
If the goods show any concealed defects, the client is obligated to inform the supplier without delay after discovery in writing.
The notification of defects shall include the serial number of the product and specification and details of the defect.
In addition, the client must comply with the examination and notification of defects obligation according to section 377 of the German Commercial Code.
If the client does not comply with the incumbent duty of inspection and notification, the corresponding claims for defect shall lapse, unless the supplier has fraudulently concealed the defect.
IX. Liability for defects and delivery
1. Upon acceptance of justified complaints, the supplier is entitled to choose between remedy of the defect or substitute delivery of goods free of defects.
2. The client shall allow the supplier access to carry out the repairs at an agreed time and date at which the purchased products must be made available to supplier. The supplier’s liability for deficiencies lapses if repairs are made to the purchased product without the supplier’s written approval, or if the delivered products are otherwise subjected to improper treatment and repair has begun without prior written agreement with supplier.
3. If the subsequent performance definitively fails, the client shall be entitled to reduce the purchase price or withdraw from the contract.
4. The client’s claims for damages, irrespective of their legal cause, are excluded unless otherwise stipulated below.
We shall be liable for damages in instances of mandatory statutory liability for damages, in particular:
- in the event of intentional acts committed by us, one of our representatives or a vicarious agent
- in the event of grossly negligent acts committed by us, one of our representatives or one of our executive employees.
- in the event of culpable injury of life, body or health
- in the event of a warranty
- in terms of the Product Liability Act
- in the event of a culpable breach of contractual obligations that are indispensable for the proper performance of the contract and on the compliance of which the customer may rely (cardinal obligations or contract-typical obligations), liability is limited to the contract-typical, foreseeable damage.
5. The client’s claims and rights due to defects on newly produced goods lapse after a period of one year.
6. Any used goods are excluded from liability for defects to the legally permitted extent.
7. The client’s rights for defects are contingent on the client having complied with the duty of inspection and notification pursuant to section 377 of the German Commercial Code.
X. Return of goods
Returns are only accepted by prior written agreement with the supplier and only against payment of a return charge corresponding to up to 50% of the product’s invoice price unless otherwise agreed in writing. Products which have been custom-made for the client or which are normally not held in stock by the supplier can under no circumstances be returned.
XI. The supplier’s right to withdraw
For cases involving unforeseeable events included in Chapter V. of the general terms and condition, to the extent that they change the economic significance or scope of the performance in a not insignificant manner, or have a significant impact on the business operation of the supplier, and in the event of subsequent impossibility of performance, the supplier shall be entitled to withdraw entirely or partially from the contract.
There can be no claims for damages by the client due to such a withdrawal.
If the supplier intends to exercise a right of withdrawal, it shall notify the client without undue delay after becoming aware of the extent of the incident, even if the supplier has initially agreed on an extension of the delivery date.
XII. Force majeure
The supplier shall be entitled to withdraw from the contract or to postpone agreed deliveries without incurring liability for missing or defective delivery or default for reasons beyond its control, such as war, unrest, civil war, terrorism, acts of government or local authorities, fire, strike, lockout, export or import bans, breakdown of energy supply or other unexpected incidents.
In this case, all claims by the client are excluded.
XIII. Data protection
Pursuant to section 33 (1) of the Federal Data Protection Act we would like to point out that all customer and supplier data are processed by ourselves using electronic data processing equipment.
XIV. Place of jurisdiction, applicable law
For all disputes arising from the contractual relationship, legal action must be brought in the court that is competent for the place where the supplier’s headquarters (registered office) are located, provided that the client is a registered commercial merchant.
The supplier is also entitled to assert legal action against the client in the court competent for the client’s registered office.
The legal relationship between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany subject to the exclusion of the UN convention on contracts for the international sale of goods.
Valid as of 1st July 2019