GTC - General Terms and Conditions
|for GÜDEL Controls GmbH's supplies and services for use when doing business with companies.
I. General provisions
1. These terms and conditions of business, exclusively, apply to the legal relationships between the Supplier and the Purchaser in connection with the former's supplies and/or services (referred to after this as the supplies). The Purchaser's general terms and conditions of business only apply if the Supplier has expressly consented to them in writing. Reciprocal written declarations of agreement are relevant for the scope of the supplies.
2. The Supplier reserves its rights of ownership and copyrights covering their exploitation, without restriction, to cost estimates, drawings and other documents (referred to after this as the documentation). The documentation must only be made accessible to third parties with the Supplier's prior consent and must, if the order is not placed on the Supplier, be given back to it immediately on request. The two preceding sentences apply analogously for the Purchaser's documentation which, however, must be made accessible to third parties to which the Supplier has properly transferred supplies.
3. The Purchaser has a non-exclusive right to use the standard software and hardware with the agreed performance characteristics in unchanged form on the agreed devices. The Purchaser may make a back-up copy of the standard software without express agreement.
4. Part deliveries are permissible if they are reasonable for the Purchaser.
5. The term "claims for compensation in damages" in these terms and conditions of business encompasses claims for reimbursement of expenditure incurred in vain.
II. Prices and payment conditions
1. The prices are ex-works, exclusive of packaging and exclusive of the current statutory turnover tax applicable in each case.
2. If the Supplier has undertaken installation or assembly and if nothing else has been agreed, then the Purchaser shall bear all necessary additional costs such as travel and transportation costs (including subsistence allowances) in addition to the agreed remuneration.
3. Payments are to be remitted to the Supplier's bank net of bank charges.
4. The Purchaser may only set off against claims that are uncontested or have been established with legal force.
III. Retention of ownership
1. The goods delivered (reserved goods) remain the Supplier's property until all the claims on the Purchaser arising from the business relationship to which the former is entitled have been satisfied. To the extent that the value of all the security interests to which the Supplier is entitled exceed the level of all the secured claims by more than 10% the Supplier will, if the Purchaser so requests, release a corresponding part of the security interests. The Supplier has the right to choose between the various security interests when releasing.
2. While retention of ownership pertains, the Purchaser is prohibited from pledging or assigning the reserved goods as collateral and is permitted to dispose of them only by reselling them in the normal course of its business and on condition that the new buyer obtains payment from its customer or makes the reservation that ownership passes over to it only when the latter has fulfilled its payment obligations.
3. The Purchaser must notify the Supplier immediately in cases of attachment, confiscation or other dispositions or third party interventions.
4. If the Purchaser breaches its duties, especially in the case of delayed payment, the Supplier has the right - after fruitless expiry of an appropriate period of grace having been set for the former's performance - to withdraw in addition to taking goods back; the statutory provisions covering the dispensability of setting a period of grace remain unaffected. The Purchaser is obliged to return the goods. The taking back and/or asserting ownership or pledging of the reserved goods by the Supplier does not imply withdrawal from the contract unless the Supplier were to have declared that expressly.
IV. Periods of time allowed for deliveries; delay
1. Complying with the periods of time allowed for deliveries presupposes the timely arrival of all documents to be sent by the Purchaser, necessary approvals and releases, especially of plans, and the latter's compliance with the agreed payment conditions and other obligations. If these preconditions are not fulfilled in good time, then the periods of time extend correspondingly; this does not apply if the Supplier is responsible for the delay.
2. If the non-compliance with the periods allowed is attributable to an instance of force majeure, such as natural disasters of every kind but also mobilisation, war, revolution or similar occurrences such as strikes or lockouts, then the periods of time, then the periods of time extend correspondingly. The same applies to the eventuality of the Supplier itself not being supplied properly or in good time.
3. If the Supplier falls behind, then the Purchaser may, providing it substantiates credibly that it has suffered loss thereby, demand compensation for each completed week of the delay of 0.5% in each case, but in total of a maximum of 5% of the price for the part of the deliveries that could not be put to their intended use owing to the delay.
4. Both the Purchaser's claims for compensation in damages owing to delayed delivery and claims for reimbursement in lieu of performance that go beyond the limits specified in subsection 3 above are, in all cases of delayed delivery, ruled out - even after the expiry of any period of grace that may have been set for the Supplier to deliver. This does not apply if liability is compelling as in cases of wilfulness, gross negligence or damage to life, the body or health. If the Supplier is responsible for the delivery delay, the Purchaser may only withdraw from the contract within the framework of the statutory provisions. A change in the burden of proof to the Purchaser's disadvantage is not linked to the above provisions.
5. On the Supplier's request within an appropriate period of time, the Purchaser is obliged to declare whether it withdraws from the contract because of the delay or insists on the delivery.
6. If shipping or delivery is delayed at the Purchaser's request by more than one month after notification of readiness to ship, then it may be charged storage for each month begun at the level of 0.5% of the price of the goods to be delivered, but in total a maximum of 5%. Both contracting parties are at liberty to prove that the storage costs are higher or lower.
V. Passage of risk
1. Risk passes to the Purchaser as follows, even when delivery is carriage paid:
a) In cases of delivery not involving assembly or installation, when the goods have been made ready to ship or been collected. At the wish and expense of the Purchaser, the Supplier will insure deliveries against normal transportation risks;
b) In cases of deliveries involving assembly or installation, on the day of taking them over into the Purchaser's own business operation or, if agreed, following problem-free trial operation.
2. When shipment, delivery, the start/carrying out of the assembly or installation, the taking over into its own business operation or the trial operation are delayed by the Purchaser for reasons for which it is responsible, or if it delays acceptance for other reasons, then risk passes over to it.
VI. Assembly and installation Unless something else has been agreed in writing, the following provisions apply to assembly and installation:
1. The Purchaser must take over at its expense and arrange in good time for:
a) all earth, construction and other ancillary works alien to the industry, including the necessary specialist and auxiliary workers, building materials and tools,
b) the equipment and materials needed for the installation and commissioning, such as scaffolding, lifting gear and other appliances, fuel and lubricants,
c) Energy and water at the point of use including connections, heating and lighting,
d) Sufficiently spacious, suitable, dry and lockable space at the installation point for keeping machine parts, apparatus, materials, tools and so on and, for the installation personnel, appropriate working space and rest areas including sanitary facilities appropriate to the circumstances concerned; apart from that the Purchaser must take the same measures on the building site to protect the Supplier's property and the assembly personnel that it would take for the protection of its own property.
e) Whatever protective clothing and devices are necessary in relation to the particular features of the installation point.
2. Before the installation work starts the Purchaser must, without being requested to do so, make available the necessary details covering the location of concealed power cables and gas and water pipes or similar utilities and provide the necessary statistical data relating to them.
3. Before starting the assembly or installation the materials and items needed to begin the work must be on site and all preliminary works advanced to the point, prior to work beginning, that the assembly/installation can be started as per contract and carried out without interruption. Approach roads and the assembly/installation site must be levelled and cleared.
4. If the assembly/installation work or the commissioning is delayed by circumstances for which the Supplier is not responsible, then the Purchaser must, to an appropriate extent, bear the costs for the waiting time and additional travelling necessary on the part of the delivery/installation personnel.
5. The Purchaser must certify to the Supplier, weekly, how many hours the assembly personnel have worked and notify it immediately when the assembly, installation or commissioning work has ended.
6. If the Supplier requests acceptance of the delivery after its completion then the Purchaser must undertake that within two weeks. If that does not happen then acceptance will be deemed to have taken place. Acceptance will also count as having taken place if the delivery - following conclusion of an agreed trial phase, if applicable - is brought into use.
The Purchaser may not refuse to accept deliveries on account of minor shortages/defects.
VIII. Material defects
The Supplier is liable for material defects as follows:
1. All parts or performances revealing a material defect must, at the Supplier's option, be rectified, re-delivered or provided afresh free of charge, providing their cause originated during the period that preceded the passage of risk.
2. Claims for subsequent fulfilment will be barred by time 12 months after the statutory start of the limitation period; the same applies to withdrawal and abatement. This period of time does not apply if the law, under §§ 438 paragraph 1 No. 2 (Building work and items for building work), 479 paragraph 1 (claim under right of recourse) and 634 a paragraph 1 No. 2 (building defects) of the Civil Code, prescribes longer periods of time in the cases of wilful action, malicious non-disclosure of the defect and non-compliance with a guaranteed property. The statutory provisions covering suspension of the running of a period, restraint and re-starting periods of time allowed remain unaffected.
3. The Purchaser's complaints about defects must be made immediately and in writing.
4. In cases of complaints about defects the Purchaser's payments may be held back to an extent that is appropriately proportionate to the material defects that have appeared. The Purchaser may only withhold payments if a complaint is asserted about defects where there is no doubt about their justification. The Purchaser has no right to withhold if its defect claims are barred by time. If a complaint about defects is made wrongly, then the Supplier has the right to demand that the Purchaser reimburse the expenditure that has arisen for the former.
5. The Supplier must be granted an opportunity to fulfil subsequently within an appropriate period of time.
6. If the subsequent fulfilment fails then the Purchaser may - irrespective of any possible claims for compensation in damages under subsection 10 below - withdraw from the contract or reduce its remuneration.
7. Defect claims do not exist in cases of just minor deviation from agreed properties, just minor impairment of usability, natural wear and tear or damage that arose after the passage of risk following incorrect or careless handling, unreasonable use, unsuitable operating materials, defective building work, unsuitable building base or because of special external influences that were not anticipated under the contract, and in the case of software failures that cannot be reproduced. No defect claims exist, in the same way, for improper changes or commissioning work undertaken by the Purchaser or third parties or for the consequences arising from such.
8. Claims by the Purchaser on account of expenditure necessary for the purpose of subsequent fulfilment, especially transport and road toll costs and the costs of labour and materials, are ruled out to the extent that they arise because what has been delivered has subsequently been moved to some location other than the location of the Purchaser's branch concerned, unless the move was in line with its intended use.
9. The Purchaser's claims for recourse against the Supplier under § 478 of the Civil Code (customer's recourse) exist only to the extent that the former has not reached any agreements with its customer going beyond the statutory defect claims. Subsection 8 above applies, furthermore, analogously for the extent of the Purchaser's claim for recourse against the Supplier under § 478 paragraph 2 of the Civil Code.
10. The Purchaser's claims for compensation in damages on account of a material defect are ruled out. This does not apply in the cases of malicious non-disclosure of the defect, of non-compliance with a guaranteed property, of injury to life, the body, health or freedom, and in the case of a wilful or grossly negligent dereliction of duty on the part of the Supplier. A change in the burden of proof to the Purchaser's disadvantage is not linked to the above provisions. Claims by the Purchaser on account of any material defect going further than or other than the claims provided for in this clause VIII are ruled out.
IX. Industrial property rights and copyrights; defects in title
1. Unless something else has been agreed, the Supplier is obliged to make the delivery free of third party industrial property rights and copyrights (referred to after this as the protective rights) only in the country where delivery takes place. If a third party files justified claims on the Purchaser on account of the infringement of protective rights by deliveries provided by the Supplier and used in accordance with the contract, then the Supplier is liable to the Purchaser as follows within the period of time specified in clause VIII subsection
a) The Supplier will, at its option and expense, either effect a right of use for the deliveries concerned or alter them in such a way that the protective right is not infringed, or will exchange them. If this is not possible for the Supplier on appropriate conditions then the Purchaser is entitled to its statutory rights to withdraw or to reduction of price.
b) The Supplier's duty to pay compensation in damages is guided by clause
c) The Supplier's obligations set out above exist only if the Purchaser notifies the former of the claims asserted by the third party immediately and in writing, does not acknowledge the infringement and reserves the Supplier's right to take all measures to defend itself and negotiate a settlement of the matter. If the Purchaser discontinues use of the delivery for the reason of reducing damage or for other important reasons, then it is obliged to draw the third party's attention to the fact that no acknowledgement of the infringement of the protective right is associated with the discontinuation of use.
2. The Purchaser's claims are ruled out if it is responsible for the infringement of the protective right.
3. The Purchaser's claims are, moreover, ruled out if the infringement of the protective right was caused by its own special instructions, as a result of an application that the Supplier could not have foreseen, or by the delivery having been altered by the Purchaser or used in conjunction with products not delivered by the Supplier.
4. In the event of infringements of protective rights, the Purchaser's claims provided for in subsection 1 a) above apply, otherwise the provisions of clause VIII subsections 4, 5 and 9 apply analogously.
5. The provisions of clause VIII apply analogously if other defects of title exist.
6. The Purchaser's claims against the Supplier and its vicarious agents on account of any defect in title going further than or other than those provided for in this clause IX are ruled out.
X. Impossibility; contract adjustment
1. If delivery is impossible then the Purchaser has the right to demand compensation in damages, unless the Supplier is not responsible for the impossibility. The Purchaser's claim for compensation in damages is, however, limited to 10% of the value of that part of the delivery that cannot be put to its intended use because of the impossibility. This limitation does not apply if there is compelling liability in cases of wilful action, gross negligence or on account of injury to life, the body or health; a change in the burden of proof to the Purchaser's disadvantage is not linked to the above provisions. The Purchaser's right to withdraw from the contract remains unaffected.
2. If unforeseeable events within the meaning of clause IV subsection 2 substantially change the economic significance or the content of the delivery or have a substantial effect on the Supplier's business operation, then the contract will be appropriately adjusted with due regard to good faith. If that is unreasonable economically, then the Supplier has the right to withdraw from the contract. If it wishes to make use of this right to withdraw, then it must communicate with the Purchaser immediately it knows the implications of the event and, in particular, if some extension of the delivery time was, for the time being, agreed with it.
XI. Other claims for compensation in damages
1. The Purchaser's claims for compensation in damages, on whatever legal basis but especially on account of duties arising from the contractual obligation and from unlawful acts, are ruled out.
2. That does not apply if there is compelling liability, for example, under the law on product liability, in cases of wilful action, gross negligence, on account of injury to life, the body or health or on account of breach of substantial contractual duties. The claim for compensation in damages for breach of substantial contractual duties is, however, limited to foreseeable damage that is typical in relation to the contract, provided there was no wilful action or gross negligence or any liability on account of injury to life, the body or health. A change in the burden of proof to the Purchaser's disadvantage is not linked to the above provisions.
3. If the Purchaser is entitled to claims for compensation in damages, then these are barred by time on the expiry of the time limitation applicable under clause VIII subsection 2. The same applies for the Purchaser's claims in connection with measures in defence of damage (for instance, recall campaigns). The statutory provisions on limitation apply to claims for compensation in damages under the product liability law.
XII. Jurisdiction and applicable law
1. Providing the Purchaser is a trading company, the Supplier's legal domicile is the sole jurisdiction for all legal disputes arising directly or indirectly from the contractual relationship. The Supplier does, however, also have the right to take legal action at the Purchaser's legal domicile.
2. German substantive law applies for the legal relationships in connection with this contract to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIII. The binding power of the contract
In the case of legal invalidity of individual provisions, the contract remains legally binding in its other parts. That does not apply if adherence to the contract were to represent an unreasonable hardship for one of the contracting parties. ABplan GmbH & Co.KG Technische Planungs- und Handelsgesellschaft
GÜDEL Controls GmbH
Tel.: +49 (8654) 4888 - 0
Fax: +49 (8654) 4888 - 60