Terms
General Terms and Conditions of GFMesstechnik GmbH
These Terms and Conditions shall apply generally, any deviating terms and conditions of the customer notwithstanding. Any additional and/or deviating agreements beyond this agreement shall be executed in writing to enter into effect.
Section 1 Subject Matter of these Terms and Conditions
The company GFMesstechnik GmbH, 14513 Teltow – hereinafter “GFM” – performs such services as are defined in the agreement in connection with the special part of these General Terms and Conditions for the other contracting party -hereinafter the "Customer".
Section 2 Offer
1. Offers made by GFM shall be non-binding.
2. GFM shall retain property rights and copyright with respect to cost estimates, drawings, software and other documents; they may be passed on to a third party only with the consent of GFM.
Section 3 Remuneration and Payment
1. All payments shall be stated in net amounts denominated in EURO.
2. Unless the order confirmation includes anything to the contrary, the prices of GFM shall be stated as ex works, excluding packaging; packaging will be invoiced separately. GFM reserves the right to change prices accordingly if costs are reduced or increased after entering into an agreement due to, in particular, collective bargaining or changes in material prices. GFM will provide the Customer with proof thereof if so requested.
3. Statutory value-added tax is not included in GFM prices; it will be stated in the statutory amount on the date of invoice and stated in the invoice separately.
4. In the absence of any contrary provisions resulting from the order confirmation, the purchase price shall be payable without deductions within 30 days of the date of invoice.
5. A discount in the amount of 2% of the amount payable is permissible in the event of payment within 10 days from the date of invoice.
6. In the event of immediate payment upon receipt of the invoice, a separate payment agreement may be reached, which, however, shall be done in writing to take effect.
Section 4 Setoff/Retention
1. The Customer shall not be entitled to set off claims against payment demands of GFM, unless such counterclaim of the Customer is uncontested and/or has been confirmed by declaratory judgment.
2. Essentially, the Customer shall not have any rights to retain title or refuse performance unless the Customer can demonstrate that the supplier is in breach of its duties from the same agreement as creates the payment demand of the supplier.
Section 5 Delivery and Performance Times/Passing of Risk
1. Barring any contrary provisions in the order confirmation, delivery shall be "ex works.”
2. The delivery period shall be deemed as having been complied with if by the time such period expires, the goods to be delivered are ready for collection at the works and a notice that the goods are ready for dispatch has been sent.
3. In addition, GFM’s compliance with its delivery obligation shall also be subject to the timely and proper performance of the Customer’s obligations. The defense of breach of contract shall remain intact.
4. If the Customer defaults in acceptance or violates any other duties of participation due to negligence, GFM shall be entitled to compensation for any damages resulting therefrom as well as for any additional expenses. Further claims shall remain intact.
5. To such extent as the conditions under Section 5 (4) are met, the risk of accidental loss or accidental deterioration of the item(s) purchased shall pass to the Customer at such time as the latter finds itself in default in acceptance or is responsible for debtor's delay.
6. If non-compliance with the period set aside for delivery and performance is due to force majeure, labor disputes or other unforeseeable obstacles, the period for delivery and performance shall be extended accordingly.
7. GFM is entitled to deliver and/or render performance ahead of schedule.
Section 6 Default in Delivery
1. Under statutory provisions, GFM shall be liable if default in delivery is due to a breach of contract as a result of willful or gross negligence on the part of GFM or negligence on the part of GFM's agents or vicarious agents. To such extent as default in delivery is not due to a breach of contract caused by the willful negligence of GFM, damages shall be limited to the foreseeable and typical damage incurred.
2. Furthermore, GFM shall be liable under statutory provisions if default in delivery is caused by the breach of an essential obligation under the agreement due to GFM’s negligence; in such event, however, damages shall be limited to the foreseeable and typical damage incurred.
3. In all other cases, GFM shall be liable in the event of default in delivery for each full week in default as part of a fixed default compensation in the amount of three per cent of the value of the shipment, but no more than 15 per cent of the value of the shipment.
3. Additional statutory claims and rights of the Customer shall remain intact.
Section 7 Liability for Defects
1. The rights of the Customer with respect to defects requires that the Customer shall have complied with its obligations of examination and notification under s. 377 HGB (German Commercial Code).
2. If the purchased item is defective, GFM, at its discretion, shall be entitled to subsequent performance by way of defect rectification or delivery of a new, non-defective item. As for defect rectification, GFM shall bear all necessary costs connected to such rectification, particularly transportation, haulage, labor and material costs, provided that they are not increased due to the purchased item having been transferred to a place other than the place of performance.
3. If subsequent performance fails, the Customer, at its discretion, shall be entitled to withdraw from the agreement or demand a reduction in price.
4. Under statutory provisions, GFM shall be liable with respect to damages claimed by the Customer based on the willful or gross negligence of GFM, including the willful or gross negligence of its agents and/or vicarious agents.
If GFM is not held responsible for willful breach of contract, liability for damages shall be limited to the foreseeable and typical damage incurred.
5. GFM shall be liable under statutory provisions if it violates an essential contractual obligation due to negligence; in such event, however, damages shall be limited to the foreseeable and typical damage incurred.
6. To such extent as the Customer is entitled to compensation for damages, instead of performance, liability for damages shall be limited to the foreseeable and typical damage incurred.
7. Liability due to negligent injury to life, limb or body shall remain intact; this shall also apply to mandatory liability under the Product Liability Act.
8. Unless the above provisions contain anything to the contrary, liability shall be excluded.
9. The limitation period shall be 12 months from the time of passing of risk.
10. Limitation for recovering from the supplier under sections 478, 479 BGB (German Civil Code) shall remain intact: it shall be five years from the delivery of the defective object.
Section 8 Total Liability
1. Further liability due to damages, as provided for under Section 7, shall be - regardless of the legal nature of the claim asserted - excluded. This shall be true, in particular, of damages resulting from negligence with respect to the conclusion of an agreement, any other non-compliance with duties or tortious claims for damages under $. 823 BGB
(German Civil Code).
2. The limitation defined under para. 1 shall also apply if the Customer demands compensation for futile expenditure instead of compensation for damages in lieu of performance.
4. To such extent as the liability of GFM is excluded or limited, such exclusion or limitation shall also apply to the personal liability of employees, staff, agents or vicarious agents of GFM.
Section 9 Retention of Title
1. GFM retains title to the purchased object until such time as all payments from the business relationship have been made by the Customer. In the event of conduct on the part of the Customer that contravenes the agreement, particularly default in payment, GFM shall be entitled to take back the purchased object. Such repossession of the purchased object by GFM shall be equivalent to a withdrawal from the agreement. Following such repossession of the purchased object, GFM shall be entitled to realize such objects, and the proceeds from such realization shall be set off against the payables of the Customer - less appropriate realization costs.
2. The Customer shall handle the purchased object with care. In particular, the Customer shall take out sufficient insurance for damage resulting from fire, water or theft at replacement value. Any maintenance and inspection work shall be carried out by the Customer at its own expense and in a timely manner.
3. In the event of attachments or other interference by a third party, the Customer shall notify GFM in writing immediately, so that legal action under s. 771 ZPO (Code of Civil Procedure) can be taken. If such third party is unable to compensate GFM for court and extra-judicial costs related to legal action under s. 771 ZPO, the Customer shall be liable for the loss that GFM thus incurs.
4. The Customer shall be entitled to resell the purchased object in the ordinary course of business; however, the Customer shall assign at this point to GFM all claims in the amount of the final amount invoiced (including valueadded tax) by GFM that the Customer incurs from the resale vis-à-vis its buyers or a third party, regardless of whether the purchased object has been resold with or without further processing. The Customer shall continue to be authorized to collect on such claims even following such assignment. GFM’s authorization to collect on such claims itself shall remain intact. However, GFM shall undertake not to collect on such claims as long as the Customer continues to meet its payment obligations from the proceeds realized, does not default in payment or, in particular, is not subject to the instigation of composition or insolvency proceedings and as long as there is no cessation of payment. If such events occur, however, GFM may demand that the Customer disclose to it the claims assigned to it and relevant debtors, provide all necessary information for collection, surrender all pertinent documents and inform the debtors (third parties) of such assignment.
5. Any processing or modification of the purchased object by the Customer shall be deemed to be carried out for or on behalf of GFM. If the purchased object is processed with other objects not belonging to GFM, GFM shall acquire coownership in the new object in proportion to the ratio between the value of the purchased object (final amount invoiced including value-added tax) and other objects processed at the time of such processing. Other than that, the object created by such processing shall be subject to the same provisions as the purchased objects delivered with reservations.
6. If the purchased object is mingled with other objects not belonging to GFM inseparably, GFM shall acquire coownership in the new object in proportion to the ratio between the value of the purchased object (final amount invoiced including value-added tax) and other objects thus mingled at the time of such mingling. If mingling is done in such manner that the object of the Customer must be considered the principal object, the Customer shall transfer to GFM co-ownership in such object in such proportion as is appropriate. The Customer shall hold the sole ownership or coownership thus created on behalf of GFM.
7. The Customer shall also assign to GFM claims as security for GFM’s claims against the Customer that arise from the purchased object's combination with a property vis-à-vis a third party.
8. GFM undertakes to release such securities due to it at the request of the Customer to such extent as the realizable value of such securities exceeds the claim to be secured by more than 10 per cent; the selection of securities to be released shall be made by GFM.
Section 10 Jurisdiction, Choice of Law and Place of Performance
1. If the Customer is a merchant, the business domicile of GFM shall be the place of jurisdiction.
2. GFM may also bring legal action against the Customer in a court of law in the Customer's residential jurisdiction.
3. The relationship between GFM and the Customer shall be subject solely to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) dated April 11, 1980, shall be excluded.
4. Barring any provision to the contrary in the order confirmation, the business domicile of GFM shall be the place of performance.
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