General Terms & Conditions
General Terms of Sale
General Terms of Business from 1 March 2014
1. General provisions
Our supplies, services and quotations shall expressly be on the basis of the following terms and conditions. They shall also apply to all future business relationships, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted upon acceptance of the goods or service at the latest. Customer’s counter-confirmations with reference to its terms and conditions of business are hereby contradicted. Deviations from these terms shall only be effective if they are confirmed by us in writing. We point out that we process and store data of Customer concerned with it in business dealings within the meaning of the Federal Data Protection Act. This version of the General Terms and Conditions of Business of March 01, 2014, supersedes all previous valid versions without exception.
2. Quotation and conclusion of contract
If not expressly stated to the contrary, our quotations shall always be subject to change without notice and non-binding. Specimens and samples shall be non-binding framework statements. Conclusions and agreements shall only become binding with our written order confirmation or upon delivery by us, in which context the invoice shall replace the order confirmation in the latter case. The designation “as usual” popular in placement of orders shall in any case only relate to the finish, not to the price. For the designation of the product, the GGK article designation alone shall be decisive. The additional statement of customer’s article designations shall be non-binding. Our written and oral application engineering consultancy shall be non-binding – also with a view to all and any third parties’ protective rights – and shall not release Customer from its own examination of our products for their suitability for the intended processes and purposes. Customer’s deviating purchasing terms shall only be binding if and insofar as the purchasing terms are expressly confirmed by us in writing. Our lack of statements on contradictory terms shall not be deemed acceptance. Side agreements and amendments to the contract shall always require our written confirmation.
3. Prices and price changes
Our prices shall be understood ex works for purchase of complete packaging units or trade units exclusive of packaging and freight and the turnover tax valid on the date of delivery in question. If not expressly stated to the contrary, the prices shall be subject to change without notice and shall be based on the current cost factors. If changes to the cost factors occur by the date of delivery, e.g. due to price increases for raw materials or wage increases, we reserve the right to a corresponding adaptation of our prices. For commissions for which no prices have been agreed, the prices valid on the date of delivery shall apply. The sales prices and all quotations and calculations shall be understood in EUR, to the extent not expressly agreed to the contrary.
4. Payment terms
Place of performance for payments shall be Greifenstein-Beilstein. To the extent that a different agreement about the form of payment is not made in an individual contract, the purchase price shall be due for payment net cash within 30 days of the date of invoice. Payment shall be made independent of receipt of the goods and all and any notifications of defects and directly to us without exception. Our sales representatives are not entitled to collect. Withholding of payments and offset shall only be possible if Customer’s counterclaim is undisputed or legally effective. If the payment period is exceeded, arrears shall commence without prior reminder. Cheques shall not be deemed cash payment and shall only be accepted in lieu of payment for collection. Payments by bill shall not be accepted. If maturity dates are exceeded, we shall be entitled to charge default interest to the amount of 8 percentage points above the basic rate of interest (§ 288 German Civil Code). The right to claim higher damage from arrears shall remain reserved. In arrears in payment, all invoices still open shall be due for payment immediately and enforceable. In the event of failure to comply with the payment terms or circumstances by which Customer’s creditworthiness is jeopardised, we shall be entitled to make our entire claims against Customer due for payment immediately. In addition, we shall be entitled to carry out deliveries still open only against cash in advance or collateral. If cash is advance or collateral are not provided even after the setting of a suitable period of grace, we shall be entitled to withdraw from the contract with a view to services not yet rendered, with the consequence that all of Customer’s claims with a view to the deliveries not yet performed shall expire without it being able to claim damages from us. We can offset all our claims with all of Customer’s claims which it has against us as a result of delivery or for other legal reasons. In addition, we shall be entitled to offset a customer’s payments against older debts, even against its will. Customer shall be informed by us about the offset extensively and without delay. To the extent that costs and interest have already been incurred, we shall offset incoming payments against the costs first, then the interest and thereafter against the goods. We shall be entitled to reject deliveries or other services for which we are liable until performance of the agreed consideration or collateral corresponding to the service if considerable arrears in payment of Customer in existence at the conclusion of the contract or its bad economic situation only becomes known to us following conclusion of the contract. If the contracting party ceases payment or if insolvency proceedings or extrajudicial composition proceedings are applied for against its assets, we shall be entitled to withdraw from the contract for the part not yet performed.
5. Delivery and service periods, passage of risk, shortfalls
Place of performance for our deliveries shall be our factory or delivery warehouse. Dispatch of the goods, which shall also include transport to the means of transport, shall exclusively be at Customer’s risk. Accordingly, risk shall pass to Customer as soon as the goods leave the factory/delivery warehouse, without regard for whether our own employees or outside vicarious agents assist us herein. §§ 278, 276 German Civil Code shall not be applicable from the passage of risk at the aforementioned time. Delivery and service periods shall be complied with if the supplied object has left the factory or readiness for dispatch has been notified or the service has been rendered before the period expires. The delivery dates stated shall be non-binding. An agreed delivery and service period shall be extended suitably in the event of measures within the framework of industrial disputes, in particular strike and lock-out, and if unforeseen obstacles outside our sphere of influence occur, to the extent that such obstacles can be proven to have a considerable influence on the completion of the delivery of the object of supply or the rendering of the service. This shall also apply if circumstances occur with our downstream suppliers or in the event of a lack of supply of materials to us by our downstream suppliers and also if they occur during our arrears. If the exceeding of the period lasts for more than 60 working days, we and - following setting of a period of grace - Customer shall be entitled to withdraw from the contract. We shall inform Customer of the start and end of such obstacles as soon as possible in important cases. If the delivery and service period is exceeded, the right to set us a suitable period of grace for delivery or service with a threat of rejection and, following a fruitless expiry of the period of grace, to withdraw from the contract shall accrue to Customer. Section 8 shall apply to claims to damages on account of a delay. Goods reported as ready for dispatch must be called without delay following expiry of the delivery period; if this is not done, we shall be entitled to dispatch them or to store them at our own discretion at Customer’s cost and risk at our choice; the same shall apply if dispatch cannot take place for reasons for which we are not answerable. Upon report of readiness for dispatch, the goods shall be deemed supplied and can be charged. In arrears of acceptance, the risk of chance deterioration and chance destruction shall pass to Customer. The form of transport, the means of dispatch, the transport route and the nature and scope of the required protection and selection of the haulier or freight forwarder, further the packaging shall be a matter of our choice. This shall be done according to our discretion with the care customary in the trade, ruling out all and any liability. The goods shall only be insured at Customer’s express request and expense. Delivery shall only be in complete packaging/trade units (PU). Supply of excess or short quantities of 10% or 20% for special constructions shall be admissible for us at a charge. Delivery shall be ex our factory or delivery warehouse exclusive of freight and packaging. Orders with a net goods value of under 150.- EUR shall be charged with a processing surcharge of 10.- EUR. If not agreed to the contrary, risk shall in any case pass to Customer with hand-over to the haulier or freight forwarder. Returns of goods by Customer shall be notified to us for examination and approval before dispatch as a matter of principle and shall be done on its part no earlier than receipt of the return slip produced by us. Returns of goods shall be dispatched “franco domicile”. If consignments are freight forward, acceptance shall be rejected. Production of a credit shall not be possible for returns of goods done without our prior consent.
Samples requested by Customer shall only be supplied at a charge as a matter of principle.
7. Quality statements
Deviations of finish, weight, percentages, mixing ratios and colour customary in the trade shall not entitle to complaints about the deliveries. Said statements shall only be regarded as approximate averages. Illustrations, dimensions and weights in our lists, documentations, catalogues, factory standards, quotations and order confirmations shall be admissible within the framework of tolerances customary in the trade or according to the relevant standards. Warranty for compliance shall not be assumed. The right to technical amendments at any time has been reserved.
8. Examination of the goods, complaints and liabilities
Customer shall be obliged to examine our goods for technical usefulness and freedom from defects. Complaints on account of defects of the goods or on account of incorrect or incomplete delivery can only be made before processing. The period for complaints shall be limited to 8 days. Notification of a complaint shall be given in writing by Customer. If Customer fails to do so, the goods shall be deemed accepted, unless it is a question of a defect not recognisable within the period for complaints even with the most careful of examinations. For such defects, the notification shall be given in writing without delay, albeit no later than 8 days after discovery. The 12-month period of barring for warranty claims by Customer shall commence upon hand-over of the goods, even in the latter case. If the notification of the complaint is in good time and justified, Customer shall be entitled to cancel the purchase to the extent that we do not declare willingness to supply a replacement or to remedy the defect within a suitable period or if the replacement delivery or remedy of the defect fails. Further-reaching claims of Customer, in particular claims to reduction of price and damages of all kinds, also claims to damage on account of personal damage, have been ruled out.
9. Drafts, drawings, constructions, moulds, tools, templates, other devices, models, other shaping devices, prototypes and samples
We shall in any case reserve the right to sole production for the drafts, drawings, constructions, moulds, tools, templates, other devices, models, other shaping devices, prototypes, samples and similar produced by us. Forwarding and reproduction of their contents shall not be permitted to the extent not expressly allowed by us in writing. Breaches shall obligate to damages. All rights for the event of granting of a patent and for registration of utility models shall remain reserved for us. Customer shall assume warranty for the fact that manufacture and supply of objects produced according to its statements do not breach third parties’ protective rights. Drafts, drawings, constructions, moulds, tools, templates, other devices, models, other shaping devices, prototypes, samples and similar shall remain our property alone, even if costs are charged to Customer. To the extent that we produce or procure drafts, drawings, constructions, moulds, tools, templates, other devices, models, other shaping devices, prototypes, samples and similar by order of Customer, we shall charge a part of the costs separately. As our expenditure for design, construction, installation or know-how and maintenance are not covered by these pro rata costs, said drafts, drawings, constructions, moulds, tools, templates, other devices, models, other shaping devices, prototypes, samples and similar including accessories shall remain our property. The same shall apply to changes and replacement models, moulds or follow-up moulds. Tool and mould costs etc. shall be due for payment immediately without deduction and plus the statutory value added tax upon invoicing. If 3 years have passed since the last delivery of the goods manufactured from them, we shall not be obliged to further storage.
10. Retention of title
We shall remain owners of the supplied goods until complete payment of the supply and regulation of all of Customer’s liabilities from the business relationship. However, Customer shall be entitled to sell or further process the goods within the framework of the ordinary course of business, forwarding our retention of title. This authorisation shall not relate to the transport boxes provided, which shall always remain our property and are only provided to Customer on a loan basis for the purpose of transport of our own goods; they shall be returned at any time upon request. Any pledging or transfer of the goods supplied by way of security in favour of third parties shall be ruled out without our consent. Customer shall not acquire ownership of the new goods pursuant to § 950, German Civil Code, by processing or combination of the conditional commodities. Processing/combination shall be done on our behalf by Customer without any liabilities resulting therefrom for us. If the goods are combined or blended with other objects, we shall acquire co-ownership of the new object in the ratio of the value of our conditional commodities to the other processed goods at the time of the processing. Customer shall keep our property/co-property free of charge. Customer here and now assigns the receivables from a resale of the conditional commodities to us, also to the extent that the goods have been processed. The assignment shall be limited to the amount of the invoice value of the conditional commodities which have been processed to form the new object. We shall not collect the assigned receivables as long as Customer complies with its payment obligations. However, Customer shall be obliged to name the third-party debtors to us and to notify them of the assignment upon request. It shall be entitled to collect the receivables itself as long as it complies with its payment obligations and we do not give it any other instructions. The retention of title shall also remain in effect if individual claims have been included in a current account by us and the balance has been drawn and acknowledged, unless the balance has been settled. Customer’s authorisation to process and to sell the conditional commodities in the ordinary course of business shall end if it ceases payments or if opening of insolvency proceedings against Customer’s assets or composition proceedings to avert insolvency are applied for. In such a case, Customer shall be obliged to return the unprocessed conditional commodities to us without delay upon first request by us. We shall credit Customer with the yield for the returned unprocessed conditional commodities which we achieve in best possible exploitation; revocation or request for return of the unprocessed conditional commodities by us shall not portray withdrawal from the purchase contract. We engage to release collateral accruing to Customer according to the aforementioned provisions at its choice to the extent that its value exceeds the claims to be secured by 20%, taking added value by Customer into due account. We shall be notified of seizure without delay with statement of the pledgee. As soon as Customer has ceased its payments or is insolvent, in particular if it ceases its payments to us, it shall be obliged to provide us with a list of the conditional commodities still in existence, also to the extent that they have been processed, and a list of the individual claims against the third party debtors along with invoice credits in writing without delay.
11. Contingent liabilities
If we enter into contingent liabilities in Customer’s interest (cheque payment), the prolonged and extended retention of title shall remain in existence until we have been completely released from said liabilities.
12. Additional terms for special productions
Special productions shall be all orders carried out according to customer-specific drawings, specifications, samples etc.. To the extent that we supply according to drawings, specifications, samples etc., they shall only be binding for us to the extent concerned with external shaping and technical finish. The data stated in the DIN sheets in question shall apply to dimensional tolerance. The decisive thing for quality and finish shall be the outturn samples which we have provided for analysis in good time before delivery. Unreserved approval of the outturn samples by Customer shall rule out later notifications of defects to the extent that the objects supplied match the approved outturn samples. On the other hand, we shall assume no liability for the intended purpose of use. Customer shall provide us with parts to be provided by it free of charge and freight-free in good time and in flawless quality at its own risk and with a quantity excess of 3-10% for all and any scrap. In such a case, the delivery periods shall only commence with receipt of the provided parts by us, notwithstanding the provisions in Section 5 of our General Terms and Conditions of Business. To the extent that manufacture and supply of objects manufactured according to drawings, specifications, samples etc. from Customer is forbidden for us by a third party invoking a protective right in its possession, we shall be entitled to cease manufacture and delivery immediately and to demand reimbursement of expenditure without being obligated to examine the legal situation and ruling our all claims to damages by Customer. The right to further-reaching claims to damages on our part shall remain unaffected.
13. Place of jurisdiction
Herborn is agreed as place of jurisdiction for all mutual claims and liabilities, also for suing on account of cheques, without regard for the place of payment and for proceedings concerning reduction of price and cancellation of contract and the party in whose hand the object of dispute is to be found and without regard for the amount involved in the litigation. The contractual and the entire legal relationships of the parties shall be governed by the law of the Federal Republic of Germany, ruling out UN purchase law (CISG).
14. Final provisions
If a provision of the present Terms is ineffective or the terms manifest a loophole, the validity of the remaining terms and conditions of business shall not be affected. The ineffective or incomplete provision shall instead be deemed replaced by a provision commercially closest to the regulation intended by the parties in a legally admissible way.
GGK GmbH & Co. KG