General Terms and Conditions of Sale (GTCs) of Gries Deco Company GmbH, Boschstrasse 7a, 63843 Niedernberg, Germany
- Version: July 2016 -
- Version: July 2016 -
1. General; scope of application
(1) These General Terms and Conditions of Sale (GTCs) apply to all our business relations with our customers ("Purchasers"). The GTCs shall only apply if the Purchaser is a trader (Section 14 BGB [German Civil Code]).
(2) The GTCs shall apply in particular to contracts for the sale and/or delivery of movable items ("Goods"), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 651 BGB). Unless otherwise agreed, the GTCs shall apply in the version which is valid at the time of the Purchaser's order, or in any case in the version communicated to the Purchaser as a framework agreement for similar future contracts, without having to refer to them again in each individual case.
(3) Our GTCs apply exclusively. General terms and conditions of the Purchaser which deviate from, conflict with or supplement these GTCs shall become a contractual constituent only insofar as we have expressly consented to their validity in writing. This requirement for consent applies in any case, for example, even if we carry out the delivery to the Purchaser without reservation and in the knowledge of the Purchaser's GTCs.
(4) Individual agreements with the Purchaser (including ancillary agreements, supplements and amendments) which have been made in individual cases shall always take precedence over these GTCs. A written contract or our written confirmation shall prevail with regard to the content of such agreements.
(5) Legal declarations and announcements which are to be submitted to us by the Purchaser after conclusion of contract (e.g. deadlines, notification of defects, declaration of withdrawal or abatement) shall only be effective if in writing.
(6) References to the validity of the statutory provisions are only given for clarification purposes. Even without such clarification, the statutory provisions shall apply insofar as they are not directly amended or expressly excluded in these GTCs.
2. Conclusion of contract
(1) Our offers are subject to change and are non-binding. This also applies if we have given the Purchaser catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyright.
(2) The ordering of the Goods by the Purchaser is considered to be a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 7 working days after its receipt.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the Goods to the Purchaser.
3. Delivery dates and delays in delivery
(1) The delivery date is agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery date is approx. 7 to 10 working days from conclusion of contract.
(2) If we are unable to comply with binding delivery dates for reasons beyond our control (non-availability of the service), we will notify the Purchaser thereof without delay and at the same time will notify it of the expected new delivery date. If the service is not available within the new delivery date, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already paid by the Purchaser. Non-availability of the service is deemed to exist in this sense where our supplier not delivered in good time, if we have concluded a congruent cover transaction, if is not the fault of either ourselves or our supplier, or if we are not obliged to effect supply in individual cases.
(3) The occurrence of a delay in delivery on our part is determined by law. In any case, however, a written reminder from the Purchaser is required.
(4) The rights of the Purchaser pursuant to Section 8 of these GTCs and our statutory rights, in particular in the case of the exclusion of the obligation to perform (e.g. due to the impossibility or the unreasonable nature of the performance and/or supplementary performance) shall remain unaffected.
4. Delivery, transfer of risk, acceptance procedure, default of acceptance, force majeure and contractual hindrances
(1) The delivery takes place ex store, which is also the place of fulfilment for the delivery and of any supplementary performance. At the Purchaser's request and expense, the Goods will be dispatched to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the shipment type (in particular the transport company, shipment route, packaging).
(2) The risk of accidental loss and of the accidental deterioration of the Goods shall pass to the Purchaser upon handover at the latest. However, the risk of accidental loss and of the accidental deterioration of the Goods, as well as the risk of delays, is passed upon transfer to the forwarding agent, freight carrier or the person or institution who is otherwise responsible for the dispatch in the case of sale by delivery to a place other than the place of performance. If acceptance procedures have been agreed upon, these shall be decisive with regard to the transfer of risk. In all other respects, the statutory provisions of the law on work and services shall apply mutatis mutandis to an agreed acceptance procedure. The transfer or acceptance procedure shall be the same if the Purchaser is delayed in its acceptance.
(3) If the Purchaser is delayed in its acceptance, if it fails to cooperate or if our delivery is delayed for other reasons for which the Purchaser is responsible, we are entitled to demand compensation for the resulting damage, including additional costs (e.g. storage costs). For this purpose we charge a flat-rate compensation of 150.00 EUR per calendar day, beginning on the delivery date or – in the absence of a delivery date – on the day of notification of the Goods' readiness for dispatch.
The right to prove greater damage remains unaffected, as do our statutory claims (in particular: reimbursement of additional expenses, reasonable compensation, termination); however, the flat-rate charge is to be offset against further monetary claims. The Purchaser is entitled to prove that we have suffered no or significantly lower losses than the aforementioned flat rate.
(4) Judicially established or undisputed cases of force majeure, such as natural disasters, hurricanes, earthquakes, etc., suspend the obligation of delivery and/or acceptance for the duration and extent of the disruption. If, as a result of the disruption, delivery and/or acceptance is delayed by more than four weeks, both parties are entitled to withdraw from the contract. In this case, mutual claims are excluded.
5. Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract are valid, ex store, in addition to statutory value-added tax.
(2) In the case of the sale by delivery to a place other than the place of performance (Section 4(1)), the Purchaser bears the cost of transport ex store and the costs of any transport insurance desired by the Purchaser. The Purchaser shall also bear any customs duties, fees, taxes or other public charges.
(3) The purchase price is due and payable within 10 days of the date of invoice and delivery, or of acceptance of the Goods. However, we are at all times also entitled to carry out a delivery in whole or in part only against prepayment, even in the context of an ongoing business relationship. We will declare a reservation to this effect by the latest upon confirming the order.
(4) The Purchaser shall be deemed in default upon the expiry of the aforementioned payment period. Interest on the purchase price is payable during the delay, at the respective statutory interest rate. We reserve the right to assert further claims resulting from any delay. Our claim vis-à-vis merchants for commercial statutory interest (Section 353 HGB [German Commercial Code]) remains unaffected.
(5) The Purchaser is entitled to offset or retention rights only insofar as its claim is legally binding or undisputed. In the case of defects in the delivery, the Purchaser's reciprocal rights, in particular pursuant to Section 7(6) sentence 2 of these GTCs shall remain unaffected.
(6) If, following the conclusion of the contract, we become aware of the fact that our claim to the purchase price is jeopardised by a lack of the Purchaser's ability to perform (e.g. by a request to open insolvency proceedings), we are entitled to withdraw from the contract in accordance with the statutory provisions on non-performance (Section 321 BGB). In the case of contracts concerning the production of unwarranted items (individual products), we can immediately declare withdrawal; the statutory provisions on the dispensability of the deadline shall remain unaffected.
6. Retention of title
(1) We retain ownership of the sold Goods pending the full payment of all our present and future claims arising from the purchase contract and from a current business relationship (secured claims).
(2) The Goods subject to retention of title may neither be pledged to third parties nor transferred to third parties as collateral before complete payment of the secured claims. The Purchaser must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties gain access (e.g. through seizures) to the Goods belonging to us.
(3) In the case of a breach of contract by the Purchaser, and in particular in the case of the non-payment of the purchase price due, we are entitled to withdraw from the contract or to demand the Goods due as a result of the reservation of title. The obligation to surrender does not include the simultaneous declaration of withdrawal; rather, we are entitled to demand only those Goods and to reserve the right to withdraw. If the Purchaser does not pay the purchase price due, we can only assert these rights if we have previously set the Purchaser a reasonable deadline for payment or if such a deadline is not required according to the relevant legal regulations.
(4) The Purchaser is authorised – until any cancellation under (c) – to resell and/or process the Goods subject to retention of title in the course of the normal course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our Goods, whereby we shall be deemed to be the manufacturer. If, in the case of the processing, mixing or combination with goods of third parties, the proprietary rights of such third parties continue to exist, we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined Goods. The same applies to the resulting product as to the Goods delivered which are subject to retention of title.
(b) The claims arising from the resale of the Goods or of the products against third parties are hereby assigned to the Purchaser as a whole or to the extent of any co-ownership share pursuant to the preceding paragraph. We accept this assignment. The obligations of the Purchaser as set out in Paragraph 2 shall also apply in respect of the assigned claims.
(c) The Purchaser shall remain authorised to collect the claim, as shall we. We undertake not to collect the claim as long as the Purchaser meets its payment obligations towards us, there is no shortage in its capacity and we do not exercise the retention of title by exercising a right pursuant to Paragraph (3) above. However, if this is indeed the case, we can demand that the Purchaser notify us of the assigned claims and the relevant debtors, provide us with all the necessary information for collection, hand over the related documents and notify the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the Purchaser's authority to resell or process the Goods which are subject to retention of title.
(d) If the realisable value of the collateral exceeds our claims by more than 10%, we shall, at the Purchaser's request, release collateral at our discretion.
7. Purchaser's claims for defects
(1) The statutory provisions apply to the rights of the Purchaser in the case of material and legal deficiencies (including wrong and short deliveries, improper assembly or faulty assembly instructions), unless otherwise stipulated in the following. In all cases, the statutory special provisions regarding the final delivery of the Goods to a consumer shall remain unaffected (supplier's redress according to Sections 478, 479 BGB).
(2) The basis for our liability for defects is, in above all else, the agreement regarding the quality of the Goods. All product descriptions which are the subject of the individual contract are deemed to be an agreement on the quality of the Goods; it makes no difference in this respect whether the product description comes from the Purchaser, from the manufacturer or from us.
(3) Insofar as the quality has not been agreed upon, the statutory regulations must be used to assess whether a defect exists or not (Section 434(1) sentences 2 and 3 BGB). However, we do not accept liability for any public statements made by the manufacturer or other third parties (e.g. advertising messages).
(4) The Purchaser's claims for defects presuppose that it has complied with its statutory obligations to investigate and report complaints (Sections 377, 381 HGB). If a defect is found during the investigation or later, we must be informed thereof immediately in writing. The notification is deemed to be immediate if it occurs within two weeks, whereby the punctual sending of the notification is sufficient for the deadline to be considered met. Irrespective of this obligation to inspect and to notify, the Purchaser must send notification of obvious defects (including wrongs and short deliveries) within two weeks of delivery, whereby the punctual sending of the notification is sufficient for the deadline to be considered met. If the Purchaser fails to properly inspect and/or send notification of the defect, our liability for the non-notified defect is excluded.
(5) If the delivered item is defective, we may initially choose whether we can carry out supplementary performance by rectifying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). Our right to refuse supplementary performance under the legal requirements shall remain unaffected.
(6) We are entitled to make the negligible supplementary performance dependent on the Purchaser paying the purchase price due. The Purchaser is, however, entitled to withhold a portion of the purchase price that is reasonable, given the defect in question.
(7) The Purchaser must give us the time and opportunity required to effect supplementary performance; in particular it must hand over the rejected Goods for inspection purposes. In the case of a replacement delivery, the Purchaser must return the defective item according to the legal regulations. Supplementary performance does not include the removal of the defective item or its reinstallation, if we were originally not obliged to install it.
(8) The expense required for the purpose of inspection and supplementary performance, in particular transportation, travel, work and material costs (not: removal and installation costs) shall be borne by us if a defect is actually present. Otherwise, we may require the Purchaser to refund the costs (in particular, the costs of inspection and transport) resulting from the unjustified request to rectify the defect, unless the lack of a defect was not apparent to the Purchaser.
(9) In urgent cases, e.g. when there is a threat to operational safety or to prevent disproportionate damages, the Purchaser has the right to rectify the defect itself and to demand we refund the objectively required expenses. We are to be informed of such actions immediately, if possible before they occur. The right to undertake such actions does not exist if we would be justified in refusing such supplementary performance in accordance with the statutory provisions.
(10) If the supplementary performance fails or if a reasonable period to be set by the Purchaser for supplementary performance expires without success or is dispensed with under the statutory provisions, the Purchaser may withdraw from the purchase contract or reduce the purchase price. For minor defects, however, there is no right of withdrawal.
(11) Claims of the Purchaser for damages or replacement of expenses incurred to no effect also exist in the case of defects only in accordance with Section 8 and are otherwise excluded.
8. Other liability
(1) Unless otherwise stated in these GTCs, including the following provisions, we shall be liable in the case of a breach of contractual or non-contractual obligations in accordance with statutory provisions.
(2) We shall be liable for damages, irrespective of the legal basis, in the event of intent or gross negligence. In the case of simple negligence, we shall be liable, subject to a more lenient scale of liability, in accordance with statutory provisions (e.g. for due care in our own affairs) only
(a) for damages resulting from injury to life, limb or health;
(b) for damages resulting from a not inconsiderable breach of a fundamental contractual obligation (an obligation whose fulfilment enables contractual performance and whose compliance the contractual partner may generally rely on and trust); in this case, however, our liability is limited to compensation of foreseeable, typically-occurring damage.
(3) The limitations of liability arising from Paragraph 2 shall also apply in the case of breaches of duty by or for the benefit of persons whose fault we are responsible for according to legal regulations. Such limitations shall not apply if we have maliciously concealed a defect or have assumed a guarantee for the quality of the goods, nor for claims of the Purchaser according to the German Product Liability Act.
(4) As a result of a breach of duty which is not a defect, the Purchaser may only rescind or terminate the contract if we are responsible for the breach of duty. A free right of termination of the Purchaser (in particular according to Section 651, 649 BGB) is excluded. The legal requirements and legal consequences otherwise apply.
9. Limitation period
(1) By way of derogation from Section 438(1) No. 3 BGB, the general limitation period for claims arising out of material defects and defects of title is one year from delivery. If an acceptance process is agreed, the limitation period begins upon acceptance.
(2) If, however, the Goods are a building or an object which has been used in a building according to its customary usage and which has caused the building to suffer a defect (building material), the limitation period shall be 5 years from delivery (Section 438(1) No. 2 BGB). Further special statutory provisions on the limitation period (in particular Section 438(1) No. 1, and (3) BGB; Sections 444, 479 BGB) shall remain unaffected.
(3) The above limitation periods regarding the purchase right also apply to the Purchaser's contractual and non-contractual claims for damages, where these are based on a defect of the Goods, unless the application of the regular legal limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. Compensation claims of the Purchaser pursuant to Section 8(2) sentence 1 and sentence 2(a), and pursuant to the Product Liability Act are, however, exclusively subject to the statutory limitation periods.
10. Choice of law, jurisdiction and effectiveness clause
(1) With regards to these GTCs and the contractual relationship between us and the Purchaser, the law of the Federal Republic of Germany applies to the exclusion of uniform international law, in particular the CISG.
(2) If the Purchaser is a merchant in the sense of a legal person governed by public law or a public special fund, our place of business (Niedernberg, Germany) is the exclusive – also international – court of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the Purchaser is an entrepreneur in accordance with Section 14 BGB. However, in all cases, we are also entitled to bring an action at the place of fulfilment of the delivery obligation in accordance with these GTCs, and/or a priority individual agreement or at the Purchaser's natural forum. Prevailing statutory provisions, in particular with regard to exclusive competence, shall remain unaffected.
(3) Should individual terms of these GTCs be invalid in whole or in part, this shall not affect the effectiveness of the remaining clauses or the remaining parts of such clauses. The parties shall replace an ineffective provision with a provision which comes closest to the economic aim of the invalid regulation, and which is effective.
Gries Deco Company GmbH,
Boschstrasse 7a, 63843 Niedernberg, Germany