General Terms and Conditions of Delivery and Service of Griffwerk GmbH
1.0 Exclusive applicability of these General Terms and Conditions to transactions with companies, bodies corporate organised under public law and special funds under public law and general provisions
1.1 These General Terms and Conditions of Sale and Delivery (hereinafter referred to as "General Terms and Conditions") shall exclusively apply to transactions with companies, legal entities and special funds under public law carrying on a trade or independent business at the time the contract is concluded. Our General Terms and Conditions shall apply to all our offers, contracts and deliveries with such customers without any exceptions.
1.2 The customer's general terms and conditions shall not be binding on us, even if we fail to object to them upon receipt thereof. This means that in case of any conflict between our General Terms and Conditions and the customer’s general terms and conditions, our General Terms and Conditions shall apply exclusively. Therefore, any additional and/or complementing regulations contained in the customer’s general terms and conditions, which are not part of these General Terms and Conditions, shall not become part of the contract.
2.0 Conclusion of contract and prices
2.1 Our offers are without engagement. We reserve our and our suppliers' property rights and copyrights to offers, drawings and other documents (irrespective of whether in tangible or intangible, including in electronic form). Such information must not be disclosed to third parties and must be returned to us immediately upon request.
2.2 Any illustrations contained in our brochures, advertisements, on our website etc. shall be non-binding.
2.3 The customer shall be bound by its order for a period of 2 weeks. Such period of time shall commence upon receipt of the order in our office. The contract shall not be deemed concluded unless we confirm acceptance of the order in writing and/or execute the order within such period of 2 weeks.
2.4 All agreements, in particular any collateral agreements and subsequent changes to the contract, shall not be effective unless made in writing. The same shall apply to any covenants as well as to any changes and/or amendments of our General Terms and Conditions.
2.5 Deliveries may deviate from the ordered total quantity by up to 10 %.
2.6 Our prices are stated net ex works our warehouse and/or the manufacturing facility. Therefore, statutory VAT, costs for packaging, loading and shipment as well as customs duties, charges and other public dues for exports are added to the price.
2.7 Minor deviations from our stated measurements, weights and performances, as customary in the industry and caused by technical improvements, shall be admissible.
2.8 We shall assume no guarantees, unless specifically agreed upon. Such agreement must be in writing in order to be valid. Any reference to DIN standards shall only support the description of the subject matter of the contract and shall not be deemed to be a guarantee.
2.9 A fax transmission shall be sufficient in order to comply with the written form provided for in number 2.4 and number 2.8 of these General Terms and Conditions; otherwise, a transmission by telecommunication means, in particular by e-mail, shall not be sufficient.
3.0 Terms of payment
3.1 Payment shall be due without any deductions within 30 days after delivery and invoicing.
3.2 We shall be entitled to execute outstanding deliveries and services against prepayment or provision of security if we find out after the conclusion of contract that payment is uncertain because of the customer's lack of financial capacity.
3.3 Orders to pay, cheques and bills of exchange shall only be accepted upon special agreement and - taking into consideration any expenses for collection and discount - only on account of performance.
3.4 Default interest of 8 percent above the base rate shall be charged in accordance with section 288, paragraph 2 of the German Civil Code.
4.0 Right of set-off and retention
4.1 The customer shall not be entitled to set off any claims against outstanding payments due to us unless such claims are undisputed or recognized by declaratory judgment.
4.2 The customer shall only be entitled to assert a right of retention if such right of retention is based on the same contract.
5.0 Delivery and delay in delivery
5.1 Delivery dates and periods, which may be agreed upon in a binding or non-binding manner, must be stated in writing.
5.2 Delivery periods shall commence upon conclusion of the contract, however, not before all technical and commercial details are agreed upon with the customer. To the extent shipment of the goods was agreed upon, terms and dates of delivery refer to the time the goods are handed over to the carrier, forwarder or other third party commissioned to effect transport.
5.3 If a non-binding date of delivery or period of delivery is agreed upon, we shall not be deemed to be in delay before the expiry of a period of 2 weeks after such date and/or end of such period of delivery. In order for us to be deemed in delay of delivery, a written notice from the customer is required (reference is made to section 286, paragraph 1 of the German Civil Code).
5.4 In case of industrial disputes, of the occurrence of unforeseeable impediments beyond our sphere of responsibility as well as of impediments in the manufacturing facility’s sphere of responsibility, the date and/or end of the period of delivery shall be postponed by a period of time that corresponds to the duration of such event. The same shall apply mutatis mutandis to impediments occurring during an existing delay in delivery.
5.5 The customer’s right to claim damages (section 280, paragraph 1 and paragraph 2 of the German Civil Code in conjunction with section 286 of the German Civil Code) based on a delay in delivery for slight negligence shall be limited to a maximum of 5 % of the agreed upon (net) purchase price. The customer’s right to claim any additional damages due to a delay in delivery shall be excluded in case of slight negligence. The customer shall in particular not be entitled to demand damages (section 280, paragraph 1 and paragraph 3 of the German Civil Code in conjunction with section 281 of the German Civil Code) instead of performance in case of a delay in delivery caused by slight negligence.
6.0 Transfer of risk as well as shipment and acceptance of the purchased items
6.1 The risk shall be transferred to the customer at the time the purchased items are handed over to the forwarder, carrier or person collecting the purchased items, however, at the time the purchased items leave our premises or the manufacturing facility at the latest. The same shall apply mutatis mutandis if we are responsible for the transport of the purchased items. If the shipment of the purchased items is delayed due to circumstances beyond our sphere of responsibility, the risk shall pass to the customer as of the date the purchased items are ready for dispatch.
6.2 We shall obtain insurance against transport damage for the purchased items upon the customer’s express request and at the customer’s expense exclusively.
6.3 We shall not be obliged to select the cheapest method of transport. The customer shall not be entitled to claim damages for wrong shipment or defective packaging caused by slight negligence.
6.4 Without prejudice to the customer’s rights stipulated in section 10 of these General Terms and Conditions, the customer shall be obliged to accept delivered goods, even if they show minor defects.
7.1 The customer shall be obliged to accept the purchased items at our corporate seat within 8 days after the date the purchased items were ready for dispatch as notified by us in writing. If the customer fails to accept the purchased items, we shall be entitled to avail ourselves of our statutory rights.
7.2 If we demand damages instead of performance, such damages shall amount to 10 % of the agreed upon (net) purchase price. The amount of such damage shall be set higher or lower if we are able to prove that the actually incurred damage is higher or if the customer is able to prove that the actually incurred damage is lower or that no damage incurred at all.
8.0 Retention of title, utilization and release of securities
8.1 The purchased items shall remain our property until full payment of the purchase price including statutory VAT. Such retention of title shall remain in force until all our receivables based of the purchase contract are paid in full.
Such retention of title shall also include all our other receivables based on the business relationship with the customer. For current accounts, the goods subject to retention of title shall be deemed security for our receivables.
8.2 If the purchased items subject to retention of title are processed together or mixed with other items that are the customer’s sole property and if our title to the goods subject to retention of title ceases to exist in accordance with sections 947 and 948 of the German Civil Code, the parties agree that any new title to such newly created goods shall be deemed assigned to us as security for our outstanding receivables and that the customer shall keep such items in custody for us, free of charge and without right of return. If the purchased items subject to retention of title are processed together or mixed with other items that are subject to any third party’s retention of title or that are property pledged as security to a third party and if our title to the goods subject to retention of title ceases to exist in accordance with sections 947 and 948 of the German Civil Code, the parties agree that we shall become co-owners of such newly created item on a pro-rata basis in accordance with the ratio between the value of the goods subject to our retention of title and the value of the items that were subject to such third party's retention of title and/or pledged as security.
8.3 Should the customer - with our written consent - sell any purchased item subject to our retention of title, the customer shall assign to us all its receivables and ancillary rights resulting from such sale. This shall also apply to the pro-rata share of the value of our co-ownership if such purchased item is processed or mixed with other items.
8.4 The customer shall be entitled to sell any purchased item subject to our retention of title in the ordinary course of business, however, the customer shall assign to us immediately all its receivables and ancillary rights resulting from such sale. This shall also apply to the pro-rata share of the value of our co-ownership if such purchased item is processed or mixed with other items. However, the customer - in the ordinary course of business and until revoked - shall be entitled to collect such receivables which are assigned to us. Our entitlement to collect such receivables assigned to us shall remain unaffected thereby. We undertake to refrain from collecting any receivables assigned to us for as long as the customer is not in delay in payment for such receivables secured by such assignment of receivables and for as long as no application for the initiation of insolvency proceedings was filed against the customer’s assets. In case of any delay in payment, we shall inform the customer in writing upon 2 weeks' prior notice of our intention to collect the receivables assigned to us. As soon as we are entitled to collect receivables assigned to us, the customer shall be obliged to deliver to us all documents and information, including but not limited to the names and full addresses of the debtors of such receivables assigned to us that are necessary in order to enforce such rights.
8.5 The customer shall be obliged to inform us immediately of any attachment by third parties of items that are our property in whole or in part and to inform such third party immediately of our right of retention. The customer shall be obliged to bear any costs for any action in opposition to the execution of a judgment, brought by a third party who claims title to the attached property and all other costs and expenses necessary in order to annul such attachment and to return our goods.
8.6 Upon request and in our discretion, we are obliged to release any securities to the extent the realizable value of all our securities permanently exceeds the total amount of all our receivables by more than 10 %. When selecting the securities to be released, we shall take into consideration the customer’s legitimate interests.
9.0 Customer’s duty to inspect and requirement to make a complaint in respect of a defect immediately upon receipt of the purchased items
9.1 Immediately upon receipt, the customer shall be obliged to inspect the purchased items and immediately inform us of any defects detected in writing. Should the customer fail to send such written notification of defect, the purchased items shall be deemed accepted except in case of defects that could not be detected during such inspection.
9.2 The customer shall be obliged to notify us of any defect detected at a later time immediately after detection and in writing. otherwise, the purchased item shall be deemed accepted irrespective of such defect.
9.3 A fax transmission shall be sufficient in order to comply with the written form provided for in number 9.1 and number 9.2 of these General Terms and Conditions; otherwise, a transmission by telecommunication means, in particular by e-mail, shall not be sufficient.
10.0 Defect in quality
10.1 The customer’s rights based on a defect in quality, irrespective of the legal basis, shall become statute-barred 12 month after delivery. This shall not apply in case of gross negligence or in cases of injury to life, limb or health. Section 10.1, clause 1 of these General Terms and Conditions shall neither apply to any defect we fraudulently concealed nor in case we guaranteed a certain quality of the purchased items nor to any claims subject to the Product Liability Act.
10.2 The customer's rights based on a defect in quality that existed already at the time the risk was transferred shall be limited, in our discretion, to subsequent performance in form of remedy of the defect or delivery of an item that is free from defects, unless we fraudulently concealed such defect in quality or guaranteed a certain quality of the purchased items. If we fail to perform the form of subsequent performance we selected (remedy of the defect or delivery of a purchased item that is free from defects), the customer shall be entitled, in its discretion, to reduce the purchase price or to rescind the contract.
10.3 We do not assume any liability for normal wear and tear, use under exceptional circumstances, wrong or negligent treatment or use of the purchased item for any other than the intended purpose.
11.1 Our liability for any damage the customer suffers due to a defect in quality - except for any damage to the purchased item - shall be limited as follows:
- to gross negligence;
- to injury to life, limb or health;
- to the typical damage foreseeable at the time the contract was concluded in case of any culpable violation of material contractual obligations if such violations endanger the fulfilment of the purpose of the contract;
- in cases in which we are liable in accordance with the Product Liability Act for personal injury and property damage of privately used items if caused by a defect of the purchased item.
- to cases in which expressly guaranteed qualities of the purchased item are lacking if such guarantee was made in order to protect the customer from damage incurring to any item other than the purchased item; and
- to cases in which we fraudulently concealed a defect or guaranteed a certain quality of the purchased item. Otherwise, we shall assume no liability.
11.2 Section 11.1 of these general terms and Conditions shall apply mutatis mutandis to any damage the customer suffers, except for any damage to the purchase object due to a defect other than a defect in quality.
11.3 our exclusive liability for any damage the customer suffers due to a delay in delivery is described in section
5.0 of these general terms and Conditions.
11.4 Sections 11.1 and 11.2 of these general terms and Conditions shall apply mutatis mutandis to any claims for damages asserted against our legal representatives and vicarious agents.
12.0 place of performance, place of JurisdictIon, applicable Law and severability
12.1 the place of performance for delivery of the purchase object shall be our (corporate) seat as entered in the trade register (hereinafter: Seat).
12.2 place of jurisdiction for any claims from the respective contract for lawsuits with a value up to 5,000.00€ shall be the district court locally relevant for our seat, and for lawsuits with a higher value the regional court locally relevant for our seat. However, we shall be entitled to file an action against the customer at its general place of jurisdiction.
12.3 german law shall apply exclusively, the un Sales Convention (CISg) shall be excluded.
12.4 Should a provision of these general terms and Conditions be or become ineffective, this shall not affect the legal effectiveness of the remaining provisions thereof. Such ineffective provision shall be deemed to be repla- ced by a legally admissible provision which comes as close as possible to the economic intent of such ineffective provision.