General Terms and Conditions of Business
I. General Provisions
- The following General Terms and Conditions of Business shall be taken as a basis for all contracts for deliveries or services from Grasdorf GmbH. Deviating General Terms and Conditions of Business of the other contracting party shall not become part of the contract, not even upon the acceptance of an order. These General Terms and Conditions shall not apply to contractual relations with consumers as defined by Section 13 BGB [German Civil Code].
- Grasdorf GmbH shall reserve rights of title and copyrights in respect of samples, cost estimates, drawings etc., as well as in respect of information of a physical or non-physical nature, including the electronic form.
These documents shall not be made accessible to third parties without Grasdorf's consent. Likewise, information or documents designated by the other contracting party as confidential shall only be made accessible to third parties by Grasdorf GmbH with the other contracting party's consent.
- Deviating agreements must be in writing.
- Insofar as individual provisions of these GT&Cs violate mandatory law, the other provisions shall remain unaffected hereby. Such ineffective provision shall then be replaced by the statutory provision.
II. Conclusion of the Contract
- Unless otherwise agreed upon, a contract shall be brought about upon Grasdorf GmbH's written acknowledgement of an order.
- The same shall apply to other agreements material to the contract.
III. Price and Payment
- In principle, the prices shall apply ex works, and shall include loading at the factory, but shall be exclusive of value-added tax, which shall be added at the respective statutory rate, as well as packaging and unloading.
- Payments shall be made into Grasdorf GmbH's bank account without any deduction, that is, as follows: 1/3 down payment upon receipt of acknowledgement of the order, 1/3 upon notification to the customer that the delivery is ready for dispatch, and the residual amount within one month after the passage of risk.
- The customer may withhold payments on account of alleged counterclaims, or declare set-off, only insofar as its counterclaims are undisputed or have been determined by a final and non-appealable court judgement.
IV. Delivery Period, Delay in Delivery
- A prerequisite for compliance with the agreed delivery period by Grasdorf GmbH is that all commercial and technical issues between the parties to the contract have been cleared up, and the customer has fulfilled all obligations falling to it, such as for example providing the essential official certificates or permits, and making a down payment. If these prerequisites are not met, the delivery period shall be appropriately extended. This shall not apply insofar as Grasdorf GmbH is responsible for such delay.
- Compliance with the delivery period shall be subject to Grasdorf GmbH itself being supplied properly and in due time. Grasdorf GmbH shall notify the customer forthwith of any foreseeable delays.
- The delivery period shall be deemed complied with, if notification of readiness for shipment has been given to the customer, or the delivery item has left Grasdorf GmbH's factory, before the delivery period expires. Insofar as an acceptance test is to be carried out, the date of notification of readiness for such acceptance test, at the latest the date of the acceptance test, shall be decisive, except in the case of justified refusal to declare acceptance.
- If dispatch or acceptance testing of the delivery item is delayed for reasons for which the customer is responsible, the customer shall reimburse the costs incurred upon the company Grasdorf GmbH as a result thereof. Grasdorf GmbH shall be entitled to demand instead, for the duration of such delay in delivery for which the customer is responsible, the payment of interest on the purchase price at the flat rate of 5 % above the base interest rate.
- Non-compliance with the delivery period on account of force majeure, industrial disputes or other events beyond the influence of the company Grasdorf GmbH shall cause the delivery period to be appropriately extended. Grasdorf GmbH shall notify the customer forthwith of the start and finish of such circumstances.
- The customer may rescind the contract without setting a time limit, if it becomes impossible for Grasdorf GmbH to render the entire service prior to the passage of risk. If only part of the delivery becomes impossible, the customer shall be entitled to rescind the contract, if it has a justified interest in refusing to accept the remaining partial delivery. Otherwise, the contract shall be limited to the remaining partial delivery and the contract price falling thereto. The same shall apply in the event that Grasdorf GmbH is unable to perform. In all other respects, the statutory provisions shall apply.
V. Delivery, Acceptance and Passage of Risk, Transportation Insurance
- Sub-deliveries shall be permissible insofar as the customer can be reasonably expected to accept sub-deliveries.
- Insofar as an acceptance test has been agreed upon, it must be carried out forthwith after notification of readiness for acceptance has been given. Acceptance may only be refused for good cause.
- The risk shall pass to the customer upon acceptance, but no later than when the delivery item has left the factory. The same shall apply mutatis mutandis in the case of sub-deliveries.
- If dispatch or acceptance of the delivery is delayed or fails to occur owing to circumstances not attributable to Grasdorf GmbH, the risk shall pass to the customer from the day when notification of readiness for dispatch / acceptance is given.
- Grasdorf GmbH shall take out transportation insurance for the customer, insofar as the customer requests this.
VI. Collateral Security (Retention of Title and Preliminary Assignment Clause)
- The goods delivered shall remain the property of Grasdorf GmbH until fully paid for.
- If the customer enters into more than one month's arrears with the payment of the amount owed, Grasdorf GmbH shall be entitled to reclaim the delivery item. A right of retention may not be offset against such claim for repossession. The customer hereby expressly acknowledges that no acts on the part of Grasdorf GmbH aimed at obtaining direct possession of the item purchased shall constitute a breach of domestic authority or unlawful interference.
- Repossession of the delivery item shall not cause the contract to be dissolved. After having repossessed the delivery item, however, Grasdorf GmbH shall be entitled to optimally sell it elsewhere and credit the customer for the purchase price.
- The costs arising as a result of taking possession of the goods, or realising the goods in some other manner, shall be borne by the customer.
- Before title has passed to the customer, the customer shall not pledge, transfer as collateral or otherwise encumber as collateral the goods delivered by Grasdorf GmbH. Insofar as a third party pursues compulsory execution in respect of the purchase item before title passes to the customer, GrasdorfGmbH shall be notified in writing forthwith.
- The customer shall be entitled to on-sell the delivery item to its own customers in the ordinary course of its business. In case of such eventuality, the customer hereby assigns to the company Grasdorf GmbH, up to the sum of the purchase price owed to the company Grasdorf GmbH, the claims arising from the corresponding purchase contract in relation to its customer. Insofar as the customer's customer makes payments relating to the contractual item, these shall be passed on to the company Grasdorf GmbH forthwith.
- In the event of any justified notification of defects, Grasdorf GmbH shall, at its option, render supplementary performance, make an additional delivery or eliminate the defects. In the case of a new delivery, the customer shall
- reimburse Grasdorf GmbH for any benefit derived from use up to the time when a new item is delivered.
- The customer shall be entitled to rescind the contract or exercise a right to a price reduction, if any initial repair fails and no supplementary performance is rendered.
- The warranty period for goods that have been completely renewed shall be 1 year.
- In all other respects, the statutory provisions shall apply.
- Only in cases of wrongful intent or gross negligence shall Grasdorf GmbH be liable for breaches of contractual duties or for loss resulting therefrom. This shall not apply to loss incurred in the event of mortal injury or physical harm.
IX. Limitation Period
- All the customer's claims arising from the delivery of second-hand goods shall become statute-barred after 12 months, 24 months in the case of new goods, regardless of the legal basis. This shall not apply to damage claims under Section VIII., to which the statutory time limits shall apply.
X. Applicable Law, Place of Jurisdiction, Other Agreements
- All legal relations between Grasdorf GmbH and the customer shall be governed exclusively by the laws of the Federal Republic of Germany.
- The court that has jurisdiction over the place where Grasdorf GmbH's registered office is situated shall be the place of jurisdiction. However, Grasdorf GmbH shall be entitled to bring an action at the customer's principal place of business.