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General Conditions of Sale and Delivery
I. Area of Application
These General Terms and Conditions of Sale and Delivery (hereinafter called the “Terms”) apply exclusively to all sales and deliveries of goods, accessories and replacement parts (hereinafter called “Goods”) by Gröditzer Werkzeugstahl Burg GmbH (hereinafter called “GWB”). Any contradictory and/or supplementary general terms of business of a customer shall not apply to GWB, unless GWB has agreed to their application in writing. This also applies even if GWB does not expressly protest such terms or meets its contractual obligations without making any reservations.
All the contractual provisions agreed with the customer are contained in the document of which these Terms constitute part and in these Terms themselves. No secondary agreements have been made.
These Terms shall also apply to all future transactions with the customer.
II. Offer
All offers made by GWB are without commitment. They solely represent a request to the customer to make an offer itself.
Public statements made by GWB, the manufacturer of the Goods supplied or its assistants, in particular in advertising or labelling, do not constitute descriptions of the properties of the Goods or a warranty of the same.
III. Prices and Value-Added Tax
The prices quoted in the confirmation of order are binding for a period of four weeks as of conclusion of the contract. All prices are quoted exclusive of value-added tax, which will be added. In the event that costs increases for which GWB is not responsible, such as increases in material or wage costs, public dues or other costs, occur four weeks after confirmation of the order and before delivery, GWB has the right to adjust prices accordingly. On request, GWB will provide the customer with evidence of these cost increases.
IV. Terms of Payment
If the contract provides for payment by a letter of credit, GWB is not obliged under any circumstances to fulfil the contract before receiving this letter of credit.
The customer must pay the purchase price within 30 days of the date of delivery; after this time, said customer will be in default pursuant to Section 286 para. 2 no. 2 BGB. The legal consequences will be in compliance with Section 288 BGB.
If the customer fails to meet its payment obligations, GWB has the right to refuse performance in whole or in part until payment of the outstanding amounts or furnishing of security.
If GWB has an obligation to render prior performance and, after the contract has been concluded, there is significant deterioration in the customer’s financial standing which endangers purchase price payments, in particular if the customer discontinues payments or an application is filed for instigation of insolvency proceedings relating to the customer‘s assets, GWB has the right to refuse performance until the purchase price has been paid or security furnished. With exclusion of compensation claims by the buyer, GWB has the right to rescind the contract if the customer has not paid the purchase price or furnished security within a reasonable period.
The customer only holds offsetting or retention rights if its counter-claims have been finally established by a court of law or are undisputed.
The customer is not permitted to assign to third parties any rights or claims resulting from this contract without obtaining GWB's prior consent.
If the customer is in default with one payment, all other outstanding claims will become payable immediately without any separate notice of default being required.
For deliveries and services to customers abroad, it is deemed expressly agreed that all costs of legal action by the supplier – both court and out-of-court action – in the event of payment default on the part of the customer shall be payable by the customer.
V. Offsetting, Intercompany Offsetting Clause
GWB has the right to offset all claims held by GWB relating to the customer against all claims held by the customer relating to GWB.
GWB also has the right to offset all claims held by GWB relating to the customer against all claims held by the customer, irrespective of their legal basis, relating to enterprises within the meaining of the above para 2 in which Georgsmarienhütte Holding GmbH has a direct or indirect majority holding.
The current listing of such enterprises within the meaining of the above para 2 is available at on the internet. Upon request, the customer can be provided with information about the enterprises within the meaining of the above para 2 at any time.
VI. Delivery and Delay in Delivery
Time schedules, in particular delivery times quoted by GWB, are only binding if expressly agreed to be binding by GWB. Under no circumstances does GWB have an obligation to comply with confirmed delivery schedules if information, co-operative actions or final product requirements necessary for the dispatch or delivery of the Goods are not received from the customer until after dispatch of the confirmation of order.
Delivery times will be extended to a reasonable extent if there are obstacles to delivery for which GWB is not responsible. This applies, in particular, in the event of disruptions to energy supplies or traffic, imposition of an embargo, operational disruptions, labour disputes or delayed supply or failure to supply by GWB’s own suppliers. If it becomes impossible for GWB to perform the contract for the above reasons, the relevant purchase order will be deemed cancelled. GWB will notify the customer immediately of any such obstacles to delivery.
GWB has the right to make partial deliveries.
If the customer defaults on acceptance of the contractual delivery, GWB has the right – with reservation of all other claims – to store the Goods at its reasonable discretion at the expense and risk of the customer and to invoice said Goods as if they had been delivered. Statutory rulings on default on acceptance are not prejudiced.
If the customer does not accept delivery even after expiry of a reasonable period of grace, GWB is entitled to sell the Goods elsewhere and bill the customer for 20% of the purchase price as minimum damages, unless the customer provides evidence that actual damages were significantly less.
VII. Dimensions, Weight, Quality
Deviations in dimensions, weight and quality are permitted in compliance with DIN or customary practice. Weights are established on GWB’s calibrated weighing devices and constitute the criteria for invoicing. Weights are evidenced by submission of the weighing record. If no individual weighing is customary, the total weight of the consignment constitutes the criterion in each case. Any differences from calculated individual weights will be allocated to said weights proportionately.
VIII. Packaging and Packaging Costs
GWB reserves the right to select packaging. If customary in the trade, GWB will supply Goods with packaging and with protection from corrosion.
The customer will pay the costs of packaging. Return of packaging is not accepted.
IX. . Passage of Risk and Place of Fulfilment
All deliveries are made “free carrier” (EXW), 39288 Burg; Troxel 1b, as per INCOTERMS 2000.
X. Warranty
If the Goods supplied have a material defect, GWB will, at its discretion, either remedy the defect or supply non-defective Goods (subsequent performance). If subsequent performance is unsuccessful or if it cannot be reasonably expected of the customer, the latter can reduce the purchase price or rescind the contract. The customer does not hold any further claims, with the exception of those in Section 11 (Liability). The customer’s claim based on Sections 478, 479 BGB (recourse in the supply chain) is not prejudiced.
The warranty period is 12 months as of delivery.
XI. Liability
GWB is only liable for damages
(a) if liability is mandatory under applicable law, e.g. pursuant to the Product Liability Act or in cases of culpable injury to life, body or health;
(b) if GWB has expressly given a warranty in writing exclusively for the provisions agreed there;
(c) if GWB has culpably breached a major contractual obligation (cardinal obligation) or
(d) if the damage is due to grossly negligent or intentional behaviour on the part of GWB.
In all other cases, liability for damages on the part of GWB is ruled out, irrespective of their legal basis. In particular, GWB does not assume liability for indirect damages, loss of profit or other financial losses by the customer.
Liability is limited under all circumstances to the damage which GWB was able to reasonably foresee or could have foreseen when making the contract, in view of the circumstances and facts at its disposal. This limitation does not apply in cases under para. (1), sub-paras. (a) and (b) of this Section 11 (Liability) and in cases of intentional damage.
The exclusion and/or limitation of liability under the above paragraphs also apply to the personal liability of the employees and vicarious agents of GWB.
XII. Force Majeure
Irrespective of the provisions in Section 11 (Liability), GWB is not responsible or liable for any disruption or delay in performance of any part of this contract if the same is due to events for which GWB is not responsible, including strikes or labour disputes. If these events last for more than 30 days, both parties have the right to rescind the contract with immediate effect, without there being any claims to compensation for possible damages or losses. In such cases, rescission must be performed by declaration to the respective other party.
XIII. Obligations of the Customer
If the Goods have been produced in compliance with drawings, designs, labels, brands or other customer specifications, the customer undertakes to hold GWB harmless in respect of all liability due to infringement of industrial property rights, such as patents, design patents or copyrights, to which GWB is exposed because the Goods meet the specifications.
In the event of transportation damage, the customer must immediately arrange for a record of damage to be made by the appropriate parties.
XIV. Reservation of Title
GWB reserves the title to the Goods supplied (Reserved Goods) until all – present and future – claims resulting from the business relationship with the customer have been settled.
Processing and treatment are always performed for GWB in its capacity as the manufacturer, but without obligation for GWB. If GWB’s title is extinguished through processing, etc., GWB shall acquire a title to the new item in the ratio of the value of the supplied items to the other items processed with them, this being at the time of processing. If the customer obtains an exclusive title as a result of combination or mixing, it will assign GWB a co-title in the ratio of the supplied items to the other combined or mixed items at the time of combination or mixing. The customer then safeguards the (co-)title for GWB. It the Goods are in the possession of a third party, the customer hereby assigns to GWB the surrender claim against the third party. GWB hereby accepts this assignment. GWB’s (co-)title acquired pursuant to these present provisions passes to the customer under the same conditions as the title to the Goods supplied by GWB.
The customer has the right to sell the Reserved Goods in the course of a due business process. The customer hereby assigns to GWB all present and future claims which it holds as a result of the resale of the Goods, such claims being in the amount of the invoiced total (including value-added tax). GWB hereby accepts this assignment. The customer is still authorised to collect these claims after they have been assigned. GWB’s authority to collect the claims itself is not prejudiced thereby. GWB has an obligation not to collect the claims itself for as long as the customer meets its payment obligations from the agreed proceeds, is not in default on payment and, in particular, no application for the instigation of insolvency proceedings has been filed and payments have not been discontinued.
The customer is not permitted to use the Reserved Goods in any other way. In particular, said customer is not authorised to assign the Reserved Goods as security or to pledge them. The claims assigned to GWB may only be pledged or assigned to third parties as security subject to GWB’s prior consent.
The customer must notify GWB immediately in writing of any intervention with the Reserved Goods by third parties or any attachment of the same by third parties. The costs necessarily incurred for protection of GWB’s rights must be paid by the customer, insofar as they cannot be reclaimed from third parties.
If the customer breaches a major contractual obligation, in particular if it defaults on payment, GWB has the right to repossess the Reserved Goods at the expense of the customer or to require the assignment of rights held by the customer in relation to third parties. In addition, GWB is entitled to revoke the customer’s right to resale and any collection authority, to collect the claims itself and to use, exploit or resell the Reserved Goods. If GWB repossesses the Reserved Goods or sells them, this is not deemed to be rescission of the contract. GWB can offset the proceeds of sale of the Reserved Goods against the outstanding claims. The customer is liable for the loss if the sale proceeds are less than the purchase price.
If the value of existing security exceeds the secured claims by a total of more than 50%, GWB must release security – at its discretion – upon request by the customer.
Insofar as GWB is entitled to repossess the Reserved Goods, the customer must irrevocably grant GWB and its representatives admission to its business premises during customary business hours and must permit repossession.
GWB has the right to assign for financing purposes the claims it holds as a result of deliveries and services.
XV. Export Certificate
If a customer with its seat of business outside the Federal Republic of Germany (international customer) or its authorised representative collects Goods and transports or sends them abroad, said customer must supply GWB with the export certificate required for tax purposes. If this certificate is not provided, the customer must pay value-added tax on the invoiced amount at the rate applicable for deliveries within the Federal Republic of Germany.
XVI. Governing Law, Legal Venue
The contractual relationship is governed by the law of the Federal Republic of Germany. Standard UN law (United Nations Convention on Contracts for the International Sale of Goods) does not apply.
The exclusive legal venue for all disputes resulting from this contract or in association with the same is Magdeburg. Irrespective of the above agreement on the legal venue, GWB can also sue the customer at its seat of business.
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