General terms and conditions of sale and payment of Georg Martin GmbH
§ 1 General provisions
Our conditions of sale shall apply to the delivery of goods in accordance with the contract concluded between us and the customer.
Our conditions of sale shall apply exclusively; we shall not accept any opposing conditions which the customer may have or any conditions the customer may have which deviate from our general terms and conditions of trade, unless we have expressly agreed to their validity in writing. Our general terms and conditions of trade shall also apply if we, aware of opposing conditions or conditions which deviate from our terms and conditions, carry out the customer’s delivery without reservation.
These general terms and conditions of trade shall also apply to future business relationships, even if they are not expressly agreed upon again.
Our general terms and conditions shall apply in respect of entrepreneurs exclusively.
§ 2 Offers, conclusion of contract
Offers shall be subject to change and non-binding insofar as no binding promise was expressly made. The customer’s order shall constitute a binding offer which we can accept within a week by sending a confirmation of order or by delivering the goods.
We shall reserve ownership rights and copyright in respect of quotations, drawings, illustrations, calculations and other documents. This shall also apply in respect of written documents described as “confidential”. The customer shall require our express written agreement before passing them on to third parties.
Tools, moulds, devices and machines which are manufactured by us for the purpose of manufacturing goods ordered by customers, shall remain our property, even if the customer has provided remuneration for them.
Additional agreements and amendments shall require our written confirmation.
§ 3 Obligation to perform and obligation to deliver
If delivery periods have become the basis of the placing of the order, these shall begin with the sending of the confirmation of order, but not, however, before the submission of the documents, approvals and releases which are to be procured by the customer, and not before receipt of an agreed down-payment. Insofar as nothing else has been expressly stated in the confirmation of order, it shall be agreed that delivery is “ex works”. The delivery period shall be deemed to have been complied with if, by the expiry of the period, we have made the object of sale available on our premises or have provided notification of the readiness for shipping.
If we have stated delivery periods and they have been made the basis of the placing of the order, the delivery periods shall be extended, in the case of measures during labour disputes, in particular strikes and lockouts, as well as in the case of the occurrence of unforeseen obstacles which are outside our sphere of influence, for the duration of the delay. This shall also apply if the circumstances occur in respect of subcontractors or suppliers. We shall also not bear responsibility for the circumstances described above if they occur during an already existing delay. We shall inform the customer of the beginning and end of such obstacles as soon as possible.
For the case of unforeseen occurrences within the meaning of § 3 no. 3 of these general terms and conditions of trade, insofar as they considerably change the economic significance or content of the performance or have a considerable effect on our enterprise, and for the case of subsequent impossibility of performance, the contract shall be adapted accordingly. Insofar as this is economically not justifiable, we shall be entitled to withdraw completely or partially from the contract. The customer shall not have any claims for damages from such a withdrawal. If we want to make use of our right to withdraw, we are to inform the customer of this without delay, including in the case that, initially, an extension of the delivery period had been agreed with the customer.
If the shipment is delayed at the customer’s wish, he shall be charged, beginning one month after notification of the readiness for shipment, with the costs arising due to storage; in the case of storage at our factory this charge shall, however, amount to at least ½ % of the invoiced amount for each month. However, we shall, irrespective of this, be entitled, after an appropriate time period has been set and has expired without success, to otherwise dispose of the delivery item and to supply the purchaser within an appropriately extended time period.
Compliance with the delivery period shall presuppose that the customer’s contractual obligations have been fulfilled. The right to use the defence of non-performance of contract shall be reserved.
Partial deliveries shall be admissible, insofar as it is not recognisable that the customer has no interest in partial deliveries or it is not recognisable that it is unreasonable to make such deliveries.
According to the type of products, surplus or short shipments caused by manufacture, which vary in terms of quantity by up to ten percent of the ordered quantity, shall be permitted, with regard both to the overall quantities and to the individual quantities.
§ 4 Bearing of the risk
The risk shall pass to the customer, at the latest with the dispatch of the items of sale, and shall also pass to the customer if partial deliveries are carried out or if we have assumed responsibility for other performances e.g. the shipping costs or transport and installation.
If the shipping is delayed as a result of circumstances for which the customer is responsible, the risk shall pass to the customer from the day on which the goods are ready to be shipped.
§ 5 Prices and terms of payment
The purchase price offered shall be binding and shall be only the net price. The statutory value-added tax is consequently not included in our prices; the amount of this tax required by law on the day of the invoicing shall be shown separately in the invoice.
If the price, at the time of the rendering of the performance, has increased due to a change in the market price or due to an increase in the remuneration demanded by third parties included in the rendering of the performance, the higher price shall apply. If this price is 20 % or more above the agreed price, the customer shall have the right to withdraw from the contract. This right must be asserted without delay after notification of the increased price.
The prices, if there is no special agreement, shall be ex works Dietzenbach without costs for packaging and shipment.
We deliver against cash in advance, cash on delivery or invoice. In the case of delivery against invoice, all invoice amounts are to be paid at the latest upon the delivery of the goods and at the latest within 30 days of the invoice date. In the case of non-cash payment, the receipt of the money by us shall be authoritative in respect of whether the payment has been made in good time. Insofar as not otherwise expressly regulated or agreed, the statutory consequences shall apply in respect of default of payment.
If the customer is in default of payment, we may impose interest on defaulted payment at a rate of 8 % above the respective base interest rate. The interest on defaulted payment shall accrue if the date of required payment is exceeded, even without any demand for payment being made. Bills of exchange shall not be valid as a means of payment and shall not be accepted. If payment is made by cheque or by means of other payment-order documents (apart from bills of exchange), any incidental costs connected to this are to be reimbursed to us by the customer. Cheques shall be accepted by us only by way of provisional performance, subject to their encashment.
§ 6 Maintenance of secrecy, data protection
All personal data ascertained by customers shall be treated confidentially. The data necessary for the conducting of the business shall be stored and, where appropriate within the necessary course of the execution of the order, given to affiliated enterprises and suppliers, and to banks for settlement of accounts.
§ 7 Rights of reservation and exclusion of setoff
The customer shall not be entitled to setoff his own claims against our claims to payment unless the customer’s claims are undisputed or have been declared to be final and conclusive.
2. The customer shall not be entitled to respond to our claims to payment by asserting rights of retention – including from complaints of deficiencies – unless these rights result from the same contractual relationship.
§ 8 Reservation of ownership
We shall reserve the ownership of the delivered item until complete payment of all claims resulting from the contract of delivery. The reservation of ownership shall also apply in respect of the claims which we have against the customer from our ongoing business relationship (extended reservation of ownership).
The handling and processing or transformation of the item of sale by the customer shall always be carried out in the name of and on behalf of us. In this case, the customer’s expectant right to the item of sale shall continue in respect of the transformed item. Insofar as the item of sale is processed with other objects not belonging to us, we shall acquire coownership of the new item in the proportion of the objective value of our item of sale to the other processed items at the time of the processing. The same shall apply in the case of mixing. Insofar as the mixing is carried out in such a manner that the customer’s item is to be regarded as the main item, it shall be deemed as agreed that the customer shall assign proportionate co-ownership and shall hold in safe custody for us the sole ownership or coownership which has come about in this way. To protect our claims against the customer, the customer shall also assign to us such claims as have accrued to him against a third party through the joining of the conditional commodity with a piece of real property; we hereby now already accept the assignment.
The customer shall be entitled to resell the conditional commodity in normal trade. The customer hereby now already assigns the claims of the purchaser resulting from the resale of the conditional commodity to us. The assignment shall apply no matter whether the item has been resold without processing or after processing. The customer shall remain entitled to collect the claim even after having assigned the claims. Our authorisation to collect the claim ourselves shall remain unaffected by this. We shall, however, not collect the claim as long as the customer meets his payment obligations from the proceeds gained, is not in default of payment, and in particular no application for bankruptcy proceedings has been made and stoppage of payment has not occurred.
We shall undertake, at the customer’s request, to release the securities to which we are entitled, insofar as their value exceeds the claims which are to be secured by more than 20 %.
We shall be entitled to insure the delivery item, at the expense of the customer, against theft, damage by breakage, fire damage, damage by water and other damage, insofar as the customer cannot prove to have taken out the insurance himself.
In the case of the customer behaving in violation of the contract, in particular in the case of default of payment, we shall be entitled to take back the delivery item after making a demand for payment and the customer shall be obliged to surrender the item. The assertion of the reservation of ownership and the attachment of the delivery item by us shall not be deemed to be a revocation of the contract.
The customer may not pledge the delivery item or assign it by way of security. In the case of attachments and seizure or other orders by third parties, the customer is to inform us without delay and to draw the third party’s attention to the reservation of ownership. Insofar as the third party is not in a position to reimburse to us the judicial and extra-judicial costs of an action pursuant to 777 Code of Civil Procedure (Zivilprozessordnung - ZPO), the customer shall be liable for the shortfall which we have incurred.
§ 9 Warranty
The customer’s warranty rights shall presuppose that the customer has properly met the duties of inspection and complaint owed pursuant to § 377 German Commercial Code (Handelsgesetzbuch - HGB). Complaints relating to quantity, weight or quality are, irrespective of an earlier statutory duty to report, to be reported to us in writing immediately after they have been ascertained, at the latest, however, a week after receipt of the shipment.
Should, despite all the care employed, the delivered goods have a deficiency which already existed at the time of the passing of the risk, we shall, subject to a complaint being made in good time, rework the goods or replace the goods, according to our choice. We are always to be given the opportunity for subsequent performance within an appropriate time period. Claims under a right of recourse shall, without restriction, remain unaffected by the above regulation.
Claims in respect of deficiencies shall not exist in the case of only insignificant deviation from the agreed condition, only insignificant impairment of the usability or natural wear or tear, nor shall they exist in the case of damage which occurs after the passing of the risk due to incorrect or negligent treatment, excessive demands being placed on the goods, unsuitable production facilities, deficient construction work, unsuitable subsoil or chemical, electrochemical or electrical influences, which are not presupposed under the contract. If improper repair work or alterations are made by the customer or a third party, there shall likewise be no claims for deficiencies which arise as a result thereof.
To carry out all improvements and substitute deliveries which, at our reasonable discretion, appear necessary, the customer is, after contacting us, to grant the necessary time and opportunity, otherwise we shall be exempt of liability for deficiencies. The customer shall only have the right to remove a deficiency himself or to have it removed by a third party in urgent cases of occupational safety and to prevent disproportionately extensive damage, in which case we are to be notified immediately, or if we are in default with removing the deficiency.
If the subsequent performance comes to nothing, the customer may – irrespective of any claims for damages – withdraw from the contract or reduce the remuneration. The time limit shall amount to at least 4 weeks. Reworking or substitute delivery shall be deemed to have come to nothing if three attempts to remove the deficiency have not led to success.
Of the costs directly arising from the repair or substitute delivery, we shall bear – insofar as the complaint proves to be justified – the costs of the replacement part including the shipment and the appropriate costs of the installation and removal. The customer’s claims in respect of the expenses necessary for the purpose of subsequent performance, in particular transport costs, transport infrastructure costs, labour costs and material costs, shall be excluded insofar as the expenses increase because the item delivered by us has been subsequently taken to a place other than the customer’s business premises, unless the transfer corresponds to its intended use. Insofar as nothing else is agreed, the amount of our liability shall be restricted to the sum covered in our business liability insurance, which is € 5 million.
There shall be no liability for any infringements of industrial proprietary rights of third parties which occur due to dealing with enquiries or orders.
The customer shall only have claims against us under a right of recourse insofar as the customer has made no agreements with his purchaser which go beyond the claims for deficiency which are compulsory by law. Section 6 shall apply accordingly in respect of the scope of the customer’s claims against us under a right of recourse.
We shall not give guarantees in a legal sense.
The warranty period shall always be a year. The limitation period in the case of a delivery recourse claim pursuant to §§ 478, 479 German Civil Code (Bürgerliches Gesetzbuch - BGB) shall remain unaffected. This shall not apply insofar as these consist of claims for damages due to deficiencies. § 9 shall apply to claims for damages due to a deficiency.
§ 10 Liability for damage
The customer’s claims to damages, e.g. due to non-fulfilment, culpa in contrahendo, infringement of additional obligations under contract, consequential damage caused by a deficiency, damage due to an unauthorised act, and other legal reasons shall be excluded unless we are liable due to the lack of a promised quality or due to intent or gross negligence. This exclusion shall not apply to claims resulting from the Product Liability Act (Produkthaftungsgesetz) or in the case of injury to the life, body or health of the customer.
A claim to damage caused by delay shall be restricted, in the case of us committing ordinary negligence, to a maximum of 5 % of the agreed price of purchase.
The above liability exclusion shall also apply to infringements of duty by our vicarious agents which are caused by ordinary negligence.
Insofar as liability for damage caused by ordinary negligence, which is not based on injury to the life, health or body of the customer, is not excluded, the limitation period for such claims shall be one year beginning from the arising of the claim or, in case of claims to damages due to a deficiency, from the delivery of the item.
Insofar as nothing else is agreed, the amount of our liability shall be restricted to the sum covered in our business liability insurance, which is € 5 million.
Insofar as our liability for damages is excluded or limited, this shall also apply with respect to the personal liability for damages of our salaried employees, employees, staff, representatives and vicarious agents.
§ 11 Limitation period in respect of our own claims
The limitation period for our claims for payment shall, in deviation from § 195 German Civil Code (Bürgerliches Gesetzbuch - BGB), be five years. § 199 German Civil Code (Bürgerliches Gesetzbuch - BGB) shall apply in respect of the beginning of the limitation period.
§ 12 General provisions
Should a provision of these conditions, and of the agreements made, be or become ineffective, the validity of the contract shall not be otherwise affected by this. The contractual partners shall be obliged to replace the ineffective provision with a provision which is a close to it as possible in terms of economic and legal success.
Changes and additions must be made in writing in order to be legally effective. The exclusion of this requirement for written form must also be made in writing.
Insofar as nothing else is stated in this contract, our registered office shall be the place of fulfilment and the place of payment.
The court which is competent for our registered office shall be the exclusive place of jurisdiction.
The law of the Federal Republic of Germany shall apply; UN purchasing law shall be excluded.