Terms of Service
GENERAL TERMS AND CONDITIONS OF GEMOTEG GMBH & CO.KG
Terms of delivery of GEMOTEG GmbH & Co.KG
If, in individual cases, obligations are also established with persons or companies who are not themselves to become a party to the contract, the liability provisions of these delivery conditions also apply to these third parties, insofar as these delivery conditions towards the third party were included in the establishment of the obligation. This is the case above all if the third party was or was already aware of the terms of delivery when the obligation was established.
We do not recognize any terms and conditions of the customer that deviate from or conflict with our terms of delivery. Agreements made earlier and earlier versions of our terms of delivery are replaced by these terms of delivery.
The receipt of services and deliveries is considered as recognition of the validity of these delivery conditions.
II. Conclusion of contract:
Unless otherwise indicated, our offers are non-binding. We are only bound to an order if it has been confirmed by us in writing or if we start executing the order. This applies above all if the customer's order is not based on a concrete, binding offer on our part. At our request, the customer is obliged to confirm in writing that we have accepted his order in writing. If the customer does not submit this declaration within five working days after receipt of the corresponding request, we are no longer bound by the order.
If our offer or our order confirmation is based on technical information from the customer (illustrations, drawings, weight and dimensions, etc.), our offer is only binding if this information was correct and the order can be carried out in accordance with the technical specifications of the customer. If it turns out after the conclusion of the contract that the order cannot be carried out in accordance with the technical specifications of the customer, we are entitled to withdraw from the contract if and to the extent that the customer is not prepared to accept the technical replacement solution proposed by us and, if applicable, to the additional costs actually incurred take over.
We reserve all rights to sketches, drafts, samples or similar preparatory work.
III. Delivery:
Our written offer or our order confirmation is decisive for the scope of the delivery. Subsidiary agreements and changes require our written confirmation.
We are entitled to partial performance for all orders to a reasonable extent. We are also entitled to use subcontractors to fulfill our contractual obligations.
Delivery periods and dates always represent the best possible information, but are generally non-binding. The beginning of the delivery period (sending of the order confirmation) as well as the observance of delivery dates presupposes that the customer performs the duties of cooperation in a timely manner and properly, provides all documents to be provided and makes any agreed advance payments. Delivery dates confirmed by us always refer to the day of dispatch of the goods from the respective place of business of our company or other place of delivery.
The documents attached to our offers, such as drawings, weights and dimensions, are only approximately authoritative unless they are expressly marked as binding.
If a delivery or service on call has been agreed, the customer must accept the entire service ordered within a reasonable period of time, but no later than three months after the agreement of the call order. At the end of this call-off period, we are entitled to invoice the entire order step by step against provision of the total service ordered.
If the delivery or service is delayed due to circumstances of force majeure, such as labor disputes, strikes, lockouts or other events at home and abroad for which we are not responsible, the delivery or service periods are extended or the delivery or service periods are postponed Performance dates around the period of the hindrance plus a reasonable start-up period. This also applies if these circumstances occur at our subcontractors. Insofar as the event of force majeure results in the permanent impossibility of performance, we are entitled to withdraw from the contract. We are also not responsible for reasons of force majeure if they occur through no fault of our own during an already existing delay. In important cases, we will immediately inform our customers of the beginning and end of such hindrances.
In the event of force majeure or other non-culpable and extraordinary circumstances, we shall not be in default. In this case, we are also entitled to withdraw from the contract if we are already in default. In particular, we shall not default in the event of delays in delivery if these are caused by incorrect or untimely delivery by our suppliers for whom we are not responsible. If we do not declare within a reasonable period of time at the request of the customer whether we will still provide the service owed, the customer is entitled to withdraw from the part of our service that has not yet been performed.
If we have concluded a congruent hedging transaction with a supplier to cover an order from the customer and the goods we ordered from our supplier turn out to be unavailable or we are otherwise not supplied by the supplier without us being aware of the unavailability or non-delivery by our supplier represented, we can withdraw from the contract with the customer. We will inform the customer immediately about the non-availability or non-delivery by our supplier. Any counter-performance already made by the customer will be refunded immediately.
If the customer is in default of acceptance or if the dispatch is delayed at the request of the customer, the costs arising from storage with us or with a third party will be charged to him, starting with the notification of readiness for dispatch. We are entitled to calculate these costs as a flat rate of 0.5% of the invoice amount (including VAT) for each week, but no more than 10% of the invoice amount (including VAT). The customer is at liberty to prove that the damage was lower. We are entitled, after a reasonable deadline has been set and has expired without result, to otherwise dispose of the delivery item and then to supply the customer again with a reasonably extended deadline.
If we are obliged to perform in advance as a result of the concluded contract, we can refuse to perform if it becomes apparent after the conclusion of the contract that our claim to the consideration is jeopardized by the customer's inability to pay. This is particularly the case if the consideration to which we are entitled is at risk due to poor financial circumstances on the part of the customer or if there are other impediments to performance, such as export or import bans, war, insolvency of suppliers or the absence of essential employees due to illness.
As soon as we become aware of the risk of the customer's inability to pay, we are entitled to deliver goods and services only against advance payment or security. Our right to withdraw from individual contracts that have already been concluded remains unaffected if and to the extent that the customer fails to make an advance payment or provide security within a reasonable period of grace.
If it has been agreed that the customer will pay in advance, delivery can only take place after we have received the full purchase price.
We can refuse our performance or production obligations if these require an effort that, taking into account the content of the contract and the requirements of good faith, is in gross misunderstanding of the customer's interest in performance. This is particularly the case if the omitted or non-compliant performance or production does not or only insignificantly affect the customer, such as in the presence of blemishes. The transfer of ownership and surrender of the object of purchase is owed. The assembly, installation or configuration of the object of purchase is not owed unless this is expressly agreed.
IV. Passing of risk:
When the goods are handed over for dispatch, the risk of loss or deterioration of the goods passes to the customer, even if partial deliveries are made. If dispatch is delayed for reasons relating to the customer, the risk passes to the customer as soon as the notification of readiness for dispatch is given.
V. Change in the scope of services:
We reserve the right to make insignificant customary changes, in particular improvements, to the goods up to delivery if this does not unreasonably affect the interests of the customer.
VI. Call orders:
In the case of call orders, i.e. contracts for the delivery of a certain number of products on call by the customer over a certain period of time agreed in advance, we are entitled to sell any goods that have not yet been called at the end of the call time to the customer within fourteen days after the end of the Deliver and invoice call-off time.
VII. Prices:
Our prices are net prices and are always “ex works” (EXW, Incoterms 2020) from the respective place of business of our company, unless otherwise agreed. When invoicing, VAT will be added at the applicable statutory rate. Shipping costs, freight, cartage, customs and other expenses associated with delivery, including the costs for issuing officially prescribed safety or conformity certificates, are accordingly borne by the customer. If the customer wishes to have freight insurance, we will take out this for him at his expense if he instructs us to do so in writing.
If, during the period between the conclusion of the contract and delivery, our suppliers increase the prices for the product in question or its primary materials, or if objective cost increases occur due to changes in the collective agreement, we are in the event that between the time the contract was concluded and that for our delivery or If the agreed performance is more than four months, we are entitled to increase the prices accordingly, also in relation to the customer. The same applies if a performance period of less than four months was agreed, but the service can only be provided by us later than four months after the confirmation of the order for reasons for which the customer is responsible.
VIII. Terms of payment:
Our claim is due upon receipt of the delivery, even partial deliveries. If the customer is in default of payment, he has to compensate us for the damage caused by the delay, in particular to pay interest of 9 percentage points above the base interest rate. If the customer is more than 14 days late with the payment of a due amount or partial amount, if the customer violates an obligation resulting from a retention of title or if the consideration to which we are entitled is jeopardized due to the customer's poor financial situation, the entire remainder of all outstanding Claims due for payment immediately.
The customer is not entitled to make any deductions without an express agreement.
Payment by bill of exchange or acceptance is only permitted if expressly agreed and is then only valid on account of payment. Discount and expenses are at the expense of the customer; they are due immediately.
Only undisputed or legally established claims can be offset against our claims for remuneration. The same applies to exercising a right of retention. The customer is only authorized to exercise a right of retention if it is based on the same contractual relationship.
The assignment of claims against us by the customer requires our prior approval, which we will only refuse for important reasons.
IX. retention of title:
We reserve title to the goods delivered by us until there are no longer any claims arising from the order. If, in addition to the claim to which we are entitled from the order, there are other claims against the customer at the time of delivery, we reserve title to the goods delivered by us until all claims referred to above have been settled (extended reservation).
If the customer pays by check or bill of exchange, the claim arising from the order and delivery continues to exist until the check or bill of exchange has been cashed by the customer.
The extended reservation applies to the balance when the claims are placed in a current account.
If the customer treats or processes the delivered goods as long as they are still subject to retention of title, the treatment or processing is carried out for us in such a way that we acquire co-ownership of the new item in proportion to the purchase value of the delivered item corresponds to the total sales value of the new item at the time of processing. If the customer processes the goods with other goods that do not belong to us, we are entitled to co-ownership of the manufactured new item in proportion to the purchase value of our reserved goods used for the manufactured item to the sales value of the new item at the time of processing.
If the goods subject to retention of title are inseparably connected, mixed or blended with other goods, we acquire co-ownership of the entire quantity in the amount of the value of our delivery, §§ 947, 948 BGB. If the customer acquires sole ownership by combining, mixing or mixing, he hereby transfers co-ownership to us in the ratio of the value of the reserved goods to the value of the newly manufactured goods at the time of connection, mixing or mixing. We accept this transfer. In this case, the customer must store the goods that we co-own free of charge.
Our security rights do not prevent the customer from disposing of items belonging to us or claims assigned to us as security in normal business operations. Normal business operations no longer exist if the customer is in arrears with his payment obligations to us one month after the onset of default, bills of exchange are protested to him, payments are suspended or an application for insolvency is filed. In this case, the customer is obliged, at our request, to inform his customers of the assignment, to refrain from collecting the claims and to allow us to collect them. At our request, the customer is also obliged to inform us of the addresses of his customers upon first request.
The retention of title is extended to all claims of the customer, which he acquires from the resale of the delivered goods subject to retention of title or from the resale of the newly manufactured goods. The claims are assigned to us in the amount of the outstanding invoice amount. To be on the safe side, the customer assigns these future claims at the time they arise. We accept this assignment. The customer is only entitled to resell the goods subject to retention of title or the newly manufactured goods with the proviso that his purchase or wage claim is transferred to us in accordance with the above provisions. The customer is not entitled to other disposals.
The customer remains authorized to collect the claims alongside us. We undertake not to collect the claims as long as the customer meets his payment obligations to us, does not default in payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the customer.
The customer may neither pledge nor transfer ownership of the delivered goods as long as they are subject to retention of title. In the event of attachments, confiscations or other dispositions by third parties, the customer must inform us immediately. The customer must treat the reserved goods with care. At our request, the customer must insure the goods subject to retention of title at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work becomes necessary, the customer must carry it out in good time at his own expense.
X. Warranty and general liability:
The limitation period for claims due to defects in our deliveries and services is one year from the start of the statutory limitation period. After the end of this year, we may in particular also refuse supplementary performance without the customer having any claims against us for a reduction in price, withdrawal or compensation for damages. This shortening of the limitation period does not apply to claims for damages other than those due to subsequent performance being refused and it does not apply in general to claims in the event of fraudulent concealment of the defect or to claims for recourse based on Section 445a of the German Civil Code; the statutory limitation periods apply to such claims.
Claims of the customer for subsequent performance due to defects in the service or delivery to be provided by us exist according to the following provisions:
2.1 If the delivered item is defective, we can initially choose whether to provide supplementary performance by eliminating the defect (repair) or by delivering a defect-free item (replacement delivery). The right to refuse the selected type of supplementary performance under the statutory requirements remains unaffected.
2.2 We are entitled to make the supplementary performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.
2.3 The customer must give us the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. In the case of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions.
2.4 We shall bear the expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor and material costs, if there is actually a defect.
2.4.1 In the case of the delivery of goods, the following also applies: If the customer has installed the defective item in another item or attached it to another item in accordance with its type and intended use, we are obliged within the framework of supplementary performance to reimburse the customer for the necessary expenses for removal of the defective item and the installation or attachment of the repaired or delivered defect-free item. § 442 para. 1 BGB is to be applied with the proviso that for the knowledge of the customer, the installation or attachment of the defective item by the customer takes the place of the conclusion of the contract.
2.4.2 The expenses for rectification or supplementary performance that arise from the fact that the purchased item has been taken to a place other than the place of residence or commercial establishment of the customer after delivery shall be borne by the customer.
2.4.3 If the customer's request for rectification of defects turns out to be unjustified, we can demand reimbursement of the costs incurred from the customer.
The customer can only claim damages:
3.1 For damages arising on
– an intentional or grossly negligent breach of duty on our part or
– on an intentional or grossly negligent breach of obligations by one of our legal representatives, executive employees or vicarious agents
which are not essential contractual obligations (cardinal obligations) and are not primary or secondary obligations in connection with defects in our deliveries or services.
3.2 For damages based on the intentional or negligent breach of contractual obligations (cardinal obligations) on our part, one of our legal representatives, executive employees or vicarious agents.
Essential contractual obligations (cardinal obligations) within the meaning of the above subsections 3.1 and 3.2 are obligations the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer regularly relies.
3.3 We are also liable for damages due to the negligent or intentional breach of obligations in connection with defects in our delivery or service (subsequent performance or secondary obligations) and
3.4 for damage that falls within the scope of a guarantee (assurance) expressly given by us or a guarantee of quality or durability.
In the event of a simple negligent breach of a material contractual obligation, the amount of liability is limited to the damage that is typically to be expected and foreseeable for us at the time the contract was concluded if we exercised due care. Claims for damages by the customer in the event of a simple negligent breach of a contractual obligation become statute-barred one year after the start of the statutory limitation period. Excluded from this are damages resulting from injury to life, limb or health. Claims for damages against us from legally binding liability, for example under the Product Liability Act, as well as from injury to life, limb or health remain unaffected by the above regulations and exist to the legal extent within the statutory periods. If third parties are commissioned or involved in the initiation or settlement of the contractual relationship between the parties, the above limitations of warranty and liability also apply to the third parties.
The customer's rights under paragraphs 445a, 445b and 478 BGB in the event that claims are made against the customer or his other customers in a supply chain remain unaffected in accordance with the following provisions:
8.1 The customer bears the burden of proof that the expenses for the supplementary performance were necessary and that he did not vis-à-vis his buyer according to § 439 para. 4 BGB could have refused subsequent performance or subsequent performance in a cheaper way.
8.2 The claim from § 445a para. 1 BGB statute of limitations acc. § 445b para. 1 BGB in two years from delivery by us to the customer. This period also applies if a longer period would apply according to § 438 BGB.
8.3 The statute of limitations in §§ 437 and 445a para. 1 BGB certain claims of the customer against us due to the defect of a sold newly manufactured item occurs at the earliest two months after the point in time at which the customer has fulfilled the claims of his buyer, provided that the claims were not yet statute-barred in the relationship between the customer and his buyer . This expiry suspension ends at the latest five years after the point in time at which we delivered the item to the customer.
If the customer is a merchant within the meaning of the German Commercial Code, the following also applies: The customer's claims for defects, in particular the claims for supplementary performance, recourse, withdrawal from the contract, reduction and compensation for damages, presuppose that the customer fulfills his statutory inspection and notification obligations (§§ 377, 381 HGB) has been complied with. If a defect is found during the inspection or later, we must be notified immediately in writing or by email to the following address: a.gerasch@gemoteg.de. The notification is deemed to be immediate if it is made within fourteen days after discovery of the defect, whereby timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to examine and give notice of defects, the customer must report obvious defects (including incorrect and short deliveries) within fourteen days of delivery in writing or in text form by email to the following address: a.gerasch@gemoteg.de, whereby here too to meet the deadline the timely dispatch of the notification is sufficient. If the customer fails to carry out the proper inspection and/or notification of defects, our liability for the non-notified defect is excluded. This does not apply if we have fraudulently concealed the defect. A merchant is any entrepreneur who is entered in the commercial register or who runs a commercial business and requires a business operation set up in a commercial manner.
XI. Product liability:
If the countries in which the customer is going to resell our products have product liability or product safety regulations that differ from German law and are particularly stricter, the customer must inform us of this when placing the order. In this case we are entitled to withdraw from the contract within one month. If the customer fails to provide this information, we can withdraw from the contract within one month of learning of the relevant legal situation. In the latter case, the customer is obliged to indemnify us from third-party claims that go beyond our obligation to perform in a comparable product liability case in Germany. This also applies if we stick to the contract.
XII. Final Provisions:
The place of performance and exclusive place of jurisdiction for all disputes arising between the parties from the contractual relationship is Hechingen, insofar as the customer is a merchant, a legal entity under public law or a special fund under public law or the customer has no general place of jurisdiction in the Federal Republic of Germany or his place of jurisdiction is abroad relocated. Irrespective of this, we are also entitled to sue the customer at his general place of jurisdiction. A merchant is any entrepreneur who is entered in the commercial register or who runs a commercial business and requires a business operation set up in a commercial manner. The customer has his general place of jurisdiction abroad if he has his place of business abroad.
Should a provision in these terms of delivery or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
German law applies to the contractual and other legal relationships with our customers, excluding the UN Sales Convention. Status: July 2021
Scope:
Our terms of delivery apply exclusively to our relationship with the customer. They also apply to all future transactions, as well as to all business contacts with the customer, such as the start of contract negotiations or the initiation of a contract, even if they are not expressly agreed again or if they are not expressly referred to again.If, in individual cases, obligations are also established with persons or companies who are not themselves to become a party to the contract, the liability provisions of these delivery conditions also apply to these third parties, insofar as these delivery conditions towards the third party were included in the establishment of the obligation. This is the case above all if the third party was or was already aware of the terms of delivery when the obligation was established.
We do not recognize any terms and conditions of the customer that deviate from or conflict with our terms of delivery. Agreements made earlier and earlier versions of our terms of delivery are replaced by these terms of delivery.
The receipt of services and deliveries is considered as recognition of the validity of these delivery conditions.
II. Conclusion of contract:
Unless otherwise indicated, our offers are non-binding. We are only bound to an order if it has been confirmed by us in writing or if we start executing the order. This applies above all if the customer's order is not based on a concrete, binding offer on our part. At our request, the customer is obliged to confirm in writing that we have accepted his order in writing. If the customer does not submit this declaration within five working days after receipt of the corresponding request, we are no longer bound by the order.
If our offer or our order confirmation is based on technical information from the customer (illustrations, drawings, weight and dimensions, etc.), our offer is only binding if this information was correct and the order can be carried out in accordance with the technical specifications of the customer. If it turns out after the conclusion of the contract that the order cannot be carried out in accordance with the technical specifications of the customer, we are entitled to withdraw from the contract if and to the extent that the customer is not prepared to accept the technical replacement solution proposed by us and, if applicable, to the additional costs actually incurred take over.
We reserve all rights to sketches, drafts, samples or similar preparatory work.
III. Delivery:
Our written offer or our order confirmation is decisive for the scope of the delivery. Subsidiary agreements and changes require our written confirmation.
We are entitled to partial performance for all orders to a reasonable extent. We are also entitled to use subcontractors to fulfill our contractual obligations.
Delivery periods and dates always represent the best possible information, but are generally non-binding. The beginning of the delivery period (sending of the order confirmation) as well as the observance of delivery dates presupposes that the customer performs the duties of cooperation in a timely manner and properly, provides all documents to be provided and makes any agreed advance payments. Delivery dates confirmed by us always refer to the day of dispatch of the goods from the respective place of business of our company or other place of delivery.
The documents attached to our offers, such as drawings, weights and dimensions, are only approximately authoritative unless they are expressly marked as binding.
If a delivery or service on call has been agreed, the customer must accept the entire service ordered within a reasonable period of time, but no later than three months after the agreement of the call order. At the end of this call-off period, we are entitled to invoice the entire order step by step against provision of the total service ordered.
If the delivery or service is delayed due to circumstances of force majeure, such as labor disputes, strikes, lockouts or other events at home and abroad for which we are not responsible, the delivery or service periods are extended or the delivery or service periods are postponed Performance dates around the period of the hindrance plus a reasonable start-up period. This also applies if these circumstances occur at our subcontractors. Insofar as the event of force majeure results in the permanent impossibility of performance, we are entitled to withdraw from the contract. We are also not responsible for reasons of force majeure if they occur through no fault of our own during an already existing delay. In important cases, we will immediately inform our customers of the beginning and end of such hindrances.
In the event of force majeure or other non-culpable and extraordinary circumstances, we shall not be in default. In this case, we are also entitled to withdraw from the contract if we are already in default. In particular, we shall not default in the event of delays in delivery if these are caused by incorrect or untimely delivery by our suppliers for whom we are not responsible. If we do not declare within a reasonable period of time at the request of the customer whether we will still provide the service owed, the customer is entitled to withdraw from the part of our service that has not yet been performed.
If we have concluded a congruent hedging transaction with a supplier to cover an order from the customer and the goods we ordered from our supplier turn out to be unavailable or we are otherwise not supplied by the supplier without us being aware of the unavailability or non-delivery by our supplier represented, we can withdraw from the contract with the customer. We will inform the customer immediately about the non-availability or non-delivery by our supplier. Any counter-performance already made by the customer will be refunded immediately.
If the customer is in default of acceptance or if the dispatch is delayed at the request of the customer, the costs arising from storage with us or with a third party will be charged to him, starting with the notification of readiness for dispatch. We are entitled to calculate these costs as a flat rate of 0.5% of the invoice amount (including VAT) for each week, but no more than 10% of the invoice amount (including VAT). The customer is at liberty to prove that the damage was lower. We are entitled, after a reasonable deadline has been set and has expired without result, to otherwise dispose of the delivery item and then to supply the customer again with a reasonably extended deadline.
If we are obliged to perform in advance as a result of the concluded contract, we can refuse to perform if it becomes apparent after the conclusion of the contract that our claim to the consideration is jeopardized by the customer's inability to pay. This is particularly the case if the consideration to which we are entitled is at risk due to poor financial circumstances on the part of the customer or if there are other impediments to performance, such as export or import bans, war, insolvency of suppliers or the absence of essential employees due to illness.
As soon as we become aware of the risk of the customer's inability to pay, we are entitled to deliver goods and services only against advance payment or security. Our right to withdraw from individual contracts that have already been concluded remains unaffected if and to the extent that the customer fails to make an advance payment or provide security within a reasonable period of grace.
If it has been agreed that the customer will pay in advance, delivery can only take place after we have received the full purchase price.
We can refuse our performance or production obligations if these require an effort that, taking into account the content of the contract and the requirements of good faith, is in gross misunderstanding of the customer's interest in performance. This is particularly the case if the omitted or non-compliant performance or production does not or only insignificantly affect the customer, such as in the presence of blemishes. The transfer of ownership and surrender of the object of purchase is owed. The assembly, installation or configuration of the object of purchase is not owed unless this is expressly agreed.
IV. Passing of risk:
When the goods are handed over for dispatch, the risk of loss or deterioration of the goods passes to the customer, even if partial deliveries are made. If dispatch is delayed for reasons relating to the customer, the risk passes to the customer as soon as the notification of readiness for dispatch is given.
V. Change in the scope of services:
We reserve the right to make insignificant customary changes, in particular improvements, to the goods up to delivery if this does not unreasonably affect the interests of the customer.
VI. Call orders:
In the case of call orders, i.e. contracts for the delivery of a certain number of products on call by the customer over a certain period of time agreed in advance, we are entitled to sell any goods that have not yet been called at the end of the call time to the customer within fourteen days after the end of the Deliver and invoice call-off time.
VII. Prices:
Our prices are net prices and are always “ex works” (EXW, Incoterms 2020) from the respective place of business of our company, unless otherwise agreed. When invoicing, VAT will be added at the applicable statutory rate. Shipping costs, freight, cartage, customs and other expenses associated with delivery, including the costs for issuing officially prescribed safety or conformity certificates, are accordingly borne by the customer. If the customer wishes to have freight insurance, we will take out this for him at his expense if he instructs us to do so in writing.
If, during the period between the conclusion of the contract and delivery, our suppliers increase the prices for the product in question or its primary materials, or if objective cost increases occur due to changes in the collective agreement, we are in the event that between the time the contract was concluded and that for our delivery or If the agreed performance is more than four months, we are entitled to increase the prices accordingly, also in relation to the customer. The same applies if a performance period of less than four months was agreed, but the service can only be provided by us later than four months after the confirmation of the order for reasons for which the customer is responsible.
VIII. Terms of payment:
Our claim is due upon receipt of the delivery, even partial deliveries. If the customer is in default of payment, he has to compensate us for the damage caused by the delay, in particular to pay interest of 9 percentage points above the base interest rate. If the customer is more than 14 days late with the payment of a due amount or partial amount, if the customer violates an obligation resulting from a retention of title or if the consideration to which we are entitled is jeopardized due to the customer's poor financial situation, the entire remainder of all outstanding Claims due for payment immediately.
The customer is not entitled to make any deductions without an express agreement.
Payment by bill of exchange or acceptance is only permitted if expressly agreed and is then only valid on account of payment. Discount and expenses are at the expense of the customer; they are due immediately.
Only undisputed or legally established claims can be offset against our claims for remuneration. The same applies to exercising a right of retention. The customer is only authorized to exercise a right of retention if it is based on the same contractual relationship.
The assignment of claims against us by the customer requires our prior approval, which we will only refuse for important reasons.
IX. retention of title:
We reserve title to the goods delivered by us until there are no longer any claims arising from the order. If, in addition to the claim to which we are entitled from the order, there are other claims against the customer at the time of delivery, we reserve title to the goods delivered by us until all claims referred to above have been settled (extended reservation).
If the customer pays by check or bill of exchange, the claim arising from the order and delivery continues to exist until the check or bill of exchange has been cashed by the customer.
The extended reservation applies to the balance when the claims are placed in a current account.
If the customer treats or processes the delivered goods as long as they are still subject to retention of title, the treatment or processing is carried out for us in such a way that we acquire co-ownership of the new item in proportion to the purchase value of the delivered item corresponds to the total sales value of the new item at the time of processing. If the customer processes the goods with other goods that do not belong to us, we are entitled to co-ownership of the manufactured new item in proportion to the purchase value of our reserved goods used for the manufactured item to the sales value of the new item at the time of processing.
If the goods subject to retention of title are inseparably connected, mixed or blended with other goods, we acquire co-ownership of the entire quantity in the amount of the value of our delivery, §§ 947, 948 BGB. If the customer acquires sole ownership by combining, mixing or mixing, he hereby transfers co-ownership to us in the ratio of the value of the reserved goods to the value of the newly manufactured goods at the time of connection, mixing or mixing. We accept this transfer. In this case, the customer must store the goods that we co-own free of charge.
Our security rights do not prevent the customer from disposing of items belonging to us or claims assigned to us as security in normal business operations. Normal business operations no longer exist if the customer is in arrears with his payment obligations to us one month after the onset of default, bills of exchange are protested to him, payments are suspended or an application for insolvency is filed. In this case, the customer is obliged, at our request, to inform his customers of the assignment, to refrain from collecting the claims and to allow us to collect them. At our request, the customer is also obliged to inform us of the addresses of his customers upon first request.
The retention of title is extended to all claims of the customer, which he acquires from the resale of the delivered goods subject to retention of title or from the resale of the newly manufactured goods. The claims are assigned to us in the amount of the outstanding invoice amount. To be on the safe side, the customer assigns these future claims at the time they arise. We accept this assignment. The customer is only entitled to resell the goods subject to retention of title or the newly manufactured goods with the proviso that his purchase or wage claim is transferred to us in accordance with the above provisions. The customer is not entitled to other disposals.
The customer remains authorized to collect the claims alongside us. We undertake not to collect the claims as long as the customer meets his payment obligations to us, does not default in payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the customer.
The customer may neither pledge nor transfer ownership of the delivered goods as long as they are subject to retention of title. In the event of attachments, confiscations or other dispositions by third parties, the customer must inform us immediately. The customer must treat the reserved goods with care. At our request, the customer must insure the goods subject to retention of title at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work becomes necessary, the customer must carry it out in good time at his own expense.
X. Warranty and general liability:
The limitation period for claims due to defects in our deliveries and services is one year from the start of the statutory limitation period. After the end of this year, we may in particular also refuse supplementary performance without the customer having any claims against us for a reduction in price, withdrawal or compensation for damages. This shortening of the limitation period does not apply to claims for damages other than those due to subsequent performance being refused and it does not apply in general to claims in the event of fraudulent concealment of the defect or to claims for recourse based on Section 445a of the German Civil Code; the statutory limitation periods apply to such claims.
Claims of the customer for subsequent performance due to defects in the service or delivery to be provided by us exist according to the following provisions:
2.1 If the delivered item is defective, we can initially choose whether to provide supplementary performance by eliminating the defect (repair) or by delivering a defect-free item (replacement delivery). The right to refuse the selected type of supplementary performance under the statutory requirements remains unaffected.
2.2 We are entitled to make the supplementary performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.
2.3 The customer must give us the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. In the case of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions.
2.4 We shall bear the expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor and material costs, if there is actually a defect.
2.4.1 In the case of the delivery of goods, the following also applies: If the customer has installed the defective item in another item or attached it to another item in accordance with its type and intended use, we are obliged within the framework of supplementary performance to reimburse the customer for the necessary expenses for removal of the defective item and the installation or attachment of the repaired or delivered defect-free item. § 442 para. 1 BGB is to be applied with the proviso that for the knowledge of the customer, the installation or attachment of the defective item by the customer takes the place of the conclusion of the contract.
2.4.2 The expenses for rectification or supplementary performance that arise from the fact that the purchased item has been taken to a place other than the place of residence or commercial establishment of the customer after delivery shall be borne by the customer.
2.4.3 If the customer's request for rectification of defects turns out to be unjustified, we can demand reimbursement of the costs incurred from the customer.
The customer can only claim damages:
3.1 For damages arising on
– an intentional or grossly negligent breach of duty on our part or
– on an intentional or grossly negligent breach of obligations by one of our legal representatives, executive employees or vicarious agents
which are not essential contractual obligations (cardinal obligations) and are not primary or secondary obligations in connection with defects in our deliveries or services.
3.2 For damages based on the intentional or negligent breach of contractual obligations (cardinal obligations) on our part, one of our legal representatives, executive employees or vicarious agents.
Essential contractual obligations (cardinal obligations) within the meaning of the above subsections 3.1 and 3.2 are obligations the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer regularly relies.
3.3 We are also liable for damages due to the negligent or intentional breach of obligations in connection with defects in our delivery or service (subsequent performance or secondary obligations) and
3.4 for damage that falls within the scope of a guarantee (assurance) expressly given by us or a guarantee of quality or durability.
In the event of a simple negligent breach of a material contractual obligation, the amount of liability is limited to the damage that is typically to be expected and foreseeable for us at the time the contract was concluded if we exercised due care. Claims for damages by the customer in the event of a simple negligent breach of a contractual obligation become statute-barred one year after the start of the statutory limitation period. Excluded from this are damages resulting from injury to life, limb or health. Claims for damages against us from legally binding liability, for example under the Product Liability Act, as well as from injury to life, limb or health remain unaffected by the above regulations and exist to the legal extent within the statutory periods. If third parties are commissioned or involved in the initiation or settlement of the contractual relationship between the parties, the above limitations of warranty and liability also apply to the third parties.
The customer's rights under paragraphs 445a, 445b and 478 BGB in the event that claims are made against the customer or his other customers in a supply chain remain unaffected in accordance with the following provisions:
8.1 The customer bears the burden of proof that the expenses for the supplementary performance were necessary and that he did not vis-à-vis his buyer according to § 439 para. 4 BGB could have refused subsequent performance or subsequent performance in a cheaper way.
8.2 The claim from § 445a para. 1 BGB statute of limitations acc. § 445b para. 1 BGB in two years from delivery by us to the customer. This period also applies if a longer period would apply according to § 438 BGB.
8.3 The statute of limitations in §§ 437 and 445a para. 1 BGB certain claims of the customer against us due to the defect of a sold newly manufactured item occurs at the earliest two months after the point in time at which the customer has fulfilled the claims of his buyer, provided that the claims were not yet statute-barred in the relationship between the customer and his buyer . This expiry suspension ends at the latest five years after the point in time at which we delivered the item to the customer.
If the customer is a merchant within the meaning of the German Commercial Code, the following also applies: The customer's claims for defects, in particular the claims for supplementary performance, recourse, withdrawal from the contract, reduction and compensation for damages, presuppose that the customer fulfills his statutory inspection and notification obligations (§§ 377, 381 HGB) has been complied with. If a defect is found during the inspection or later, we must be notified immediately in writing or by email to the following address: a.gerasch@gemoteg.de. The notification is deemed to be immediate if it is made within fourteen days after discovery of the defect, whereby timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to examine and give notice of defects, the customer must report obvious defects (including incorrect and short deliveries) within fourteen days of delivery in writing or in text form by email to the following address: a.gerasch@gemoteg.de, whereby here too to meet the deadline the timely dispatch of the notification is sufficient. If the customer fails to carry out the proper inspection and/or notification of defects, our liability for the non-notified defect is excluded. This does not apply if we have fraudulently concealed the defect. A merchant is any entrepreneur who is entered in the commercial register or who runs a commercial business and requires a business operation set up in a commercial manner.
XI. Product liability:
If the countries in which the customer is going to resell our products have product liability or product safety regulations that differ from German law and are particularly stricter, the customer must inform us of this when placing the order. In this case we are entitled to withdraw from the contract within one month. If the customer fails to provide this information, we can withdraw from the contract within one month of learning of the relevant legal situation. In the latter case, the customer is obliged to indemnify us from third-party claims that go beyond our obligation to perform in a comparable product liability case in Germany. This also applies if we stick to the contract.
XII. Final Provisions:
The place of performance and exclusive place of jurisdiction for all disputes arising between the parties from the contractual relationship is Hechingen, insofar as the customer is a merchant, a legal entity under public law or a special fund under public law or the customer has no general place of jurisdiction in the Federal Republic of Germany or his place of jurisdiction is abroad relocated. Irrespective of this, we are also entitled to sue the customer at his general place of jurisdiction. A merchant is any entrepreneur who is entered in the commercial register or who runs a commercial business and requires a business operation set up in a commercial manner. The customer has his general place of jurisdiction abroad if he has his place of business abroad.
Should a provision in these terms of delivery or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
German law applies to the contractual and other legal relationships with our customers, excluding the UN Sales Convention. Status: July 2021