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1.1 These Terms and Conditions apply exclusively to business transactions with companies, legal entities under public law and special funds under public law. The statutory provisions apply to business transactions with consumers.
1.2 All our deliveries and services are subject to these Terms and Conditions, without requiring express reference to them. These Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods ("goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers. Unless otherwise agreed, the terms and conditions in the version valid at the time of the Customer's current order or at least in the version last communicated in text form shall also apply as a framework agreement for similar future contracts, without having to refer to them again in each individual case.
1.3 These Terms and Conditions shall apply exclusively. Any deviating, conflicting or additional terms and conditions of the Customer will become an integral part of the contract only insofar as we have expressly agreed to this. This requirement of consent shall apply in every case, even, for example, where we make a delivery in full knowledge of the Customer's terms and conditions without reservation.
1.4 Any individual agreements made with the Customer (including additional or supplementary agreements or amendments) shall always take precedence over these Terms and Conditions. Subject to evidence to the contrary, a written contract or written confirmation on our part shall be decisive for the content of such agreements.
1.5 Legally relevant declarations and notifications of the Customer with regard to the contract (e.g. setting a deadline, notification of defects, recession or reduction) must be made in writing, i.e. in written or text form (e.g. letter, email, fax). Statutory formal requirements and further evidence, in particular in cases of doubt as to the declarer's authorization, shall remain unaffected.
1.6 References to applicable law and the validity of the statutory regulations are only for clarification purposes. Even without such clarification, the statutory provisions apply, unless directly modified or expressly excluded by these Terms and Conditions.
2. Conclusion of the Contract
2.1 Our offers are always subject to change and are non-binding. This also applies if we have provided the Customer with catalogues, technical documentations (e.g. drawings, plans, calculations, references to DIN), other product descriptions or documents – also in electronic form – for which we reserve all ownership and copyrights. Any customer's order is deemed to be a binding offer.
2.2 The contract shall be concluded on our written order confirmation or by delivery of the goods to the Customer in accordance with the order.
2.3 If changes are requested after the order confirmation, their acceptance is at our discretion; additional costs will generally be charged. The Customer accepts this offer at the latest with the acceptance of the delivery according to his change requests.
3.1 Unless otherwise stated in the order confirmation, prices are quoted ex works, excluding packaging, plus VAT at the statutory rate. Any duties, fees, taxes and other government levies are payable by Customer. The sum for the packaging costs corresponds to one percent of the net value of the goods.
3.2 In case the goods will be shipped to another destination at the request of the Customer (Sales Shipment), the Customer shall bear the transportation costs from the named supply plant and the costs of any transport insurance requested by the Customer.
4. Delivery, Transfer of Risk, Default in Acceptance, Delivery Time
4.1 Delivery shall be made from the designated supply plant, which is also the place of performance for the delivery and any rectification of defects. At the Customer's request and expense, the goods will be shipped to another destination (Sales Shipment). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular the transport company, shipping method and packaging).
4.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest when the goods are delivered to the Customer. However, in case of Sales Shipment, the risk of accidental loss and accidental deterioration of the goods and the risk of delay passes to the Customer once the goods are handed over to the forwarder, carrier or other person or organisation carrying out the shipping. If acceptance of the goods has been agreed upon, this is decisive for the transfer of risk. Any other statutory provision of the law for contracts of work shall also apply to acceptance of the goods. Delivery or acceptance shall be deemed rendered if the Customer refuses the offered delivery or service (Delay in Acceptance).
4.3 If the Customer is in Delay of Acceptance or fails to carry out required cooperation, or if our delivery is delayed for other reasons for which the Customer is responsible, we shall be entitled to demand compensation for the resulting damage. For this we charge a lump sum compensation in an amount equal to 0.5% of the order value per week, with a maximum of 10% of the order value, beginning with the date of delivery – or in the absence of a date of delivery, with the date of the notification that the goods are ready for dispatch. Our right to demonstrate that we have incurred greater damage and our other legal rights (especially for additional expenses, reasonable damage, termination of contract) remain unaffected; however, the lump sum damage as described above shall be included in any further monetary claims. The Customer has the right to provide evidence that we have not incurred any damage or considerably lower damage than the above lump sum.
4.4 Deadlines and timeframes for deliveries and services given by us are at all times only approximate, unless a fixed period or deadline has been explicitly accepted or agreed. The qualification of our being in default on delivery shall be determined in accordance with the statutory provisions. In any case, a reminder by the Customer shall be necessary. In addition, enforcement of any rights pursuant to non-compliance with delivery dates shall only be allowed after a reasonable grace period of at least 21 working days.
4.5 We are entitled to partial delivery and partial performance at any time, if this does not result in an unreasonable disadvantage for the Customer.
4.6 Where and to the extent we are unable to meet binding delivery agreements or times for reasons for which we are not responsible (Non-Availability of Delivery or Service), we will inform the Customer without any undue delay and, at the same time, provide the new expected delivery time. If the delivery or service is still not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we will reimburse the Customer without any undue delay for any consideration already paid. Any claims for damages by the Customer shall be excluded.
Non-Availability of Delivery or Service includes, but is not limited, to (i) cases of Force Majeure or other events which were not foreseeable by us at the time the contract was concluded and that are outside of our reasonable control (e.g. natural disasters of any kind, such as earthquakes, bad weather, floods, volcanic eruptions, pandemics, epidemics, plagues, war, acts of war or terror, riots, unrest, civil or national state of emergency, governmental actions, strikes, lawful lockouts, sustained traffic disruptions such as traffic routes being blocked, official measures, export restrictions or bans, operational disruptions through no fault of ours) or (ii) where our supplier does not provide the delivery on time if a congruent hedging transaction has been concluded or (iii) in case of a Non-Availability of Delivery or Service on the part of the supplier.
4.7 The rights of the Customer according to Section 9 of these Terms and Conditions and our statutory rights, in particular in case of exclusion from our obligation to perform (e.g. due to impossibility or impracticability of performance or rectification of defects) shall thereby remain unaffected.
5. Description of Goods and Services, Ownership and Copyright of Documents and Aids
5.1 The shipping weights and dimensions indicated in the printed material are given as accurately as possible, but are to be understood only as approximate information, unless accurate conformity is required the purpose of use specified in the contract. The information in the order confirmation is decisive for the quality of the goods. Details of the purpose of use only affect the contractually owed quality if we confirm the intended use in writing. We generally work according to the standards applicable in the European Union; should deviating standards be applied, the Customer must inform us accordingly before conclusion of contract. Outside the European Community it is the Customer's responsibility to ensure compliance with relevant product safety regulations; any resulting costs, in particular necessary tests or certifications, shall be borne by the Customer.
5.2 We reserve retention of title and copyright on all offers and quotes submitted by us as well as on any drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids provided to the Customer. Without our express consent Customer may not make these objects or their content accessible to third parties and may not have them used or reproduced, either by himself or by third parties. Upon our request, Customer must return any such above-mentioned objects to us in their entirety and destroy any copies made if they are no longer required in the regular course of business or if negotiations do not result in conclusion of a contract. The storage of data provided by electronic transmission is excepted for the purpose of conventional data backup.
6. Payment, Due Date of the Purchase Price
6.1 Payment must be made by bank transfer. Invoicing is in EUROS; currency risks are borne by the Customer. The Customer is only entitled to set off or retention if counterclaims have been legally established or are undisputed. In the event of defects in the delivery, the Customer's counter-rights shall remain unaffected, in particular in accordance with Section 8.5 clause 2 of these Terms and Conditions.
6.2 The purchase price shall be due and payable within 14 days of the date of invoice and delivery respectively inspection of the goods. However, even within an ongoing business relationship, we are entitled at any time to make a delivery in whole or in part only against prepayment. We will declare a corresponding reservation at the latest with our order confirmation. Upon expiration of the above-mentioned term of payment, the Customer will be in default.
6.3 Interest shall accrue on the purchase price per the applicable statutory default interest rate for the duration of any payment default. We reserve the right to claim compensation for further damage caused by default. Our right to claim as per the statutory commercial maturity interest shall remain unaffected.
6.4 We are entitled to withhold further deliveries, even if the delivery date has already been agreed, until all due claims relating to the same legal relationship have been settled in full, without the Customer being entitled to any kind of compensation.
6.5 Payments shall be deemed to be made in the sequence specified by the applicable law; any deviating sequence determined by the Customer is invalid. Any agreed discounts will only be applied if no other invoice was due at the time of payment.
7. Retention of Title
7.1 The delivery items shall remain our property until the Customer has paid all payment claims, including future ones, under the purchase contract and the current business relationship (secured payment claims), in particular any outstanding balance of their current account.
7.2 The Customer may neither pledge the delivery items nor assign them as security until full payment of the secured payment claims.
7.3 If the Customer is in breach of contract, specifically in the event of non-payment of the purchase price due, we are entitled to rescind from the contract and / or demand the return of the goods on grounds of retention of title. The demand to return the goods does not automatically constitute rescission from the contract; rather, we are entitled to demand the return of the goods subject to retention of title alone, while reserving the right of rescission. If the Customer fails to pay the due purchase price, we may execute these rights only if the Customer was given a reasonable deadline for payment or if such deadline is not required by law.
7.4 The Customer is authorised, until further notice pursuant to (c) below, to sell the goods, which are subject to retention of title, or further process them in the ordinary course of business. In such case, the following provisions shall apply:
(a) The retention of title extends to the full value of the products resulting from the further processing of or mixing or connecting with our products, whereby we shall be deemed manufacturer. If, in the case of further processing or mixing or connecting with goods of third parties, their ownership rights persist, we acquire joint ownership in the ratio of the invoice values of the processed, mixed or connected goods. Apart from that the same shall apply to the resulting product as to our goods delivered subject to retention of title.
(b) The Customer hereby assigns to us by way of security any and all claims against third parties from the resale of our goods or generated products in full and to the extent of any joint ownership in accordance with the preceding paragraph. We herewith accept this assignment.
(c) Apart from us, the Customer also remains authorised to collect the claim. We undertake not to collect the claim as long as the Customer meets his payment obligations to us, there is no defect in his performance and we do not exercise the retention of title by exercising a right in accordance with Section 7.3. In such case however, we can demand that the Customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents, and informs the debtors (third parties) of the assignment. In addition, we are entitled to revoke the authority of the Customer to resell and process the goods under retention of title.
7.5 If the realisable value of the securities exceeds our claims by more than 10%, we will release securities at our discretion at the Customer's request.
7.6 The Customer must treat the reserved goods with due care. He must insure them at his own expense, at replacement value, against fire and water damage and against theft. If maintenance and inspection work have to be done, Customer shall carry out the same in a timely manner and at his expense.
7.7 The Customer must notify us in writing without delay if an application for insolvency proceedings has been made, or if there are third party claims to the goods belonging to us (e.g. pledges). In the event of pledging of the reserved goods by third parties or other interventions by third parties, the Customer must inform the third party on our ownership. Pledging of transferred claims must also be reported to us immediately in writing; the Customer must inform the third party of our claim of ownership. If the third party is unable to reimburse us for the judicial and extra-judicial costs arising in this respect, the Customer shall instead be liable for the same.
7.8 If applicable law requires formal steps to enforce the rights set out above, e.g. registration of the delivery items, the Customer is obliged to inform us accordingly and to duly cooperate. In the event individual provisions on the retention of title are invalid under applicable law, a provision that is enforceable under applicable law and which approximates the same intention shall be deemed to have been agreed.
8. Warranty for Defects
8.1 The rights of the Customer in the event of any deficiency in quality or title (including any incorrect and incomplete deliveries as well as improper or defective assembly) shall be governed by the statutory provisions, unless otherwise stipulated below.
8.2 The basis for any claim for defects shall first and foremost be the agreement as to condition/quality of the goods. As an agreement as to the condition / quality of the goods are deemed to be all product descriptions which are subject matter of the individual contract or which have been made public by us (in particular in catalogues or on our Internet homepage). Insofar as an agreement as to the condition / quality of the goods has not been agreed upon, the statutory provisions shall determine whether a defect exists or not. However, we assume no liability for public statements of any third parties (e.g. advertising statements).
8.3 The Customer´s warranty claims require the Customer to have fulfilled his statutory obligation to examine the goods and give notice of defects. If a defect is detected at time of delivery, inspection or any later point in time, this must be reported to us immediately in writing. Obvious defects must always be reported in writing within five working days of delivery. Any defects that would not be found in the course of a normal visual inspection must be reported within the same period of time after their detection. Notice of defects for a partial delivery shall not be deemed notice of defects for the entire delivery, even if the product which is subject of the complaint has been manufactured in the same production batch. If the Customer fails to carry out proper inspection and/or to report a defect in due time, our liability for the unreported, or improperly or untimely reported defect, shall be excluded in accordance with the statutory provisions.
8.4 If the delivered goods are defective, we may remedy said defect by means of removing the fault (repair) or by delivering a substitute product free of defects (replacement delivery) at our discretion. Our statutory right to refuse remedy remains unaffected.
8.5 We are entitled to make any remedy conditional on payment of the purchase price by the Customer. However, the Customer is entitled to retain a reasonable portion of the purchase price in proportion to the defective part of the delivery.
8.6 The Customer shall allow us the necessary time and opportunity for due remedial performance and shall in particular hand over the goods concerned for inspection. In the case of a replacement delivery, the Customer shall return the defective goods as required by law.
8.7 We shall bear the expenses necessary for the remedy, in particular transport, travel, labour and material costs. If the Customer has installed a defective item in another item or mounted it in another item in accordance with its type and intended use, we shall reimburse the Customer for the necessary expenses for removing the defective item and for installing or mounting the repaired or delivered defect-free item; however, we must first be granted the opportunity to remove and install the concerned item. In such case awareness of the Customer takes place not upon conclusion of the contract, but instead upon installation or mounting of the defective item by the Customer. If there is no defect present, we may demand reimbursement from the Customer for the costs arising from the unjustified request to remedy the defect (in particular testing and transport costs), unless the lack of defectiveness was not apparent to the Customer.
8.8 The Customer may withdraw from the contract or reduce the purchase price if the remedy fails or if a reasonable deadline for the remedy set by the Customer expires unsuccessfully or is not required according to the statutory provisions. There shall, however, be no right to withdraw in case of a minor defect.
8.9 Insofar as the applicable law pursuant to Section 11.2 provides for a statutory regulation of supplier recourse in addition to the statutory regulation of warranty, the assertion thereof shall hereby be limited to 62 months after delivery of the goods of our respective company to the Customer, provided that the applicable law pursuant to Section 11.2 permits a longer assertion.
8.10 Also in the case of defects, any claims of the Customer for damages or reimbursement of incurred expenses shall only be granted in accordance with Section 9 and are otherwise excluded.
9. Other Liabilities
9.1 Unless otherwise set out in these General Terms and Conditions including the following provisions, we shall be liable for breach of contractual and non-contractual obligations in accordance with the statutory provisions.
9.2 We shall be liable for damages – irrespective of their legal grounds – in cases of intent or gross negligence. Subject to a more lenient standard of liability in accordance with statutory provisions (e.g. for diligence in our own affairs), in the event of simple negligence we shall be liable only
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of material contractual obligations (obligations of which the proper fulfilment constitutes a condition sine qua non and on the fulfilment of which the contractual party regularly relies and may rely); in this case our liability is however limited to the reimbursement of the foreseeable, typically occurring damages.
9.3 The limitations of liability resulting from 9.2 shall also apply to breaches of duty by or in favour of persons for whose damage we are responsible in accordance with statutory provisions. They shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods as well as for claims of the Customer under the Product Liability Act.
9.4 In case of a breach of duty, which is not a deficiency in quality or title, the Customer shall only be entitled to withdraw from or terminate the contract if we are liable for said breach. An unrestricted right of termination on the part of the Customer is excluded. For all else, the statutory requirements and legal consequences shall apply.
10. Limitation Period
10.1 Claims for defects, with the exception of claims for damages, shall come under the statute of limitations within twelve months from delivery. If acceptance of goods has been agreed upon, the limitation period commences upon acceptance. To claims for damages Section 10.3 shall apply.
10.2 If the respective goods are a building or an object that has been used for a building in accordance with its normal use and which has caused its defectiveness (building material), the limitation period of the statutory regulation shall be 5 years from the date of delivery.
10.3 The statutory limitation periods shall also apply to any contractual and non-contractual claims for damages of the Customer, resulting from a defect in the goods, unless the application of the regular statutory limitation period would result in a shorter limitation period in the specific instance. However, claims for damages of the Customer pursuant to Section 9.2 clauses 1 and 2 a) above as well as the Product Liability Act shall exclusively be subject to the statutory limitation periods.
11. Arbitration, Applicable Law
11.1 Insofar as the contractual partners are merchants within the meaning of the commercial code, legal entities under public law or special public assets, all disputes arising out of or in connection with a contract based on these Terms and Conditions shall be settled, if possible, by friendly negotiation and in good faith by the parties. The same applies if the Customer is an entrepreneur. However, either party shall be entitled to finally resolve the dispute under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with these Rules. The place of arbitration shall be the capital city of the country in which the Customer has its registered office. The language of the arbitration shall be the respective common national language otherwise English. An arbitration award shall be final and binding on each party.
However, the judicial dunning procedure remains admissible if such a procedure is provided for in the ordinary procedural law at the registered office of GEMÜ. If the dunning procedure turns into litigation, this will take place before the ordinary court at the registered office of GEMÜ.
11.2 The national laws at our place of business shall apply to these Terms and Conditions as well as to the contractual relationship with the Customer, to the exclusion of international uniform law, in particular the UN Sales Convention.
Version: May 2022