Information/ General Terms & Conditions/ General Terms and Conditions of GPS Prüftechnik GmbH

General Terms and Conditions of GPS Prüftechnik GmbH

A) GENERAL TERMS

I  Conclusion of a contract

  1. The following conditions apply to our deliveries and performances (together with information and consultations) – also in the future – in the trade with companies. Entrepreneurs in the sense of these terms and conditions are natural or legal persons or legally responsible private companies with whom we enter into a business relationship and who act by pursuing a commercial or an independent professional trade. Our conditions are regarded as accepted when entering into the business relationship with us and are valid for the duration of this business relationship.
     
  2. The purchase terms of the buyer are not valid, even if we do not object to them explicitly. Deviating corresponding or additional standard terms and conditions do not become part of the contract even upon knowledge, unless their validity is approved explicitly in writing. Our conditions are regarded as agreed upon at the latest when accepting our deliveries and performances.
     
  3. Our offers are conditional. A contract is only concluded with and according to our written order confirmation or upon delivery of the goods. Changes and/or additions to the contract (including these conditions) require written confirmation of us to become legal validity.
     
  4. All information which are given about our product have to be regarded as approximate average values. They are no quality guarantees. Customary tolerances (manufacturing tolerances) are admissible, as well as increased or reduced deliveries of up to 5%. Samples for costumer-specific productions are non-binding approval samples. Sample qualities are regarded as not guaranteed.
     
  5. We retain our unrestricted property and copyright exploitation rights to costs estimates, drawings and other documents. The documents may only be made accessible to third parties after our prior consent and must be returned to us immediately upon demand if we do not get the order. The clauses 1 and 2 apply to buyer’s documents accordingly; they may be made accessible to those third parties whom we have authorized to make deliveries.
     
  6. The buyer data are saved and processed by us via the electronic data processing, if and as far as this is necessary for properly concluding a business relationship. 

II  Prices and terms of payment

  1. Our given prices are net prices and binding. The legal VAT is charged additionally.
     
  2. Unless agreed upon otherwise, the payment has to be made without a discount deduction and without any further deductions in any way so that the money is at our disposal at the settlement date. We are entitled to charge interests to the amount of the individual bank rates for overdraft provisions, at least to the amount of 8 per cent points above the individual basic interest rate (§ 247 BGB) starting at maturity. The buyer is entitled to establish proof of a different interest disadvantage. More far-reaching claims in the case of a default are reserved.
     
  3. The buyer must only set off against indisputable or legally determined claims. He only has retaining liens if they are based on the same contractual relationship.
     
  4. All of our claims resulting from the business connection with the buyer become payable immediately if and as far as our pecuniary claim is endangered due to circumstances with have occurred at a later time and which lead to a major property reduction. Furthermore, in these cases we are entitled to make deliveries which have not yet been made only against advance payment or surety. If the advance payment or the surety is not made or given within two weeks, we are entitled to withdraw from the contract. Our far-reaching claims remain unaffected.
     
  5. The costs for packing and transport are to be compensated for separately 

III  Reservation of proprietary rights

  1. The goods delivered by us remain our property until all claims have been paid, including the claims which all arise in the future and including the balance claims from current account which we have against the buyer or against his group of companies, regardless of the legal justification for their rising, even if the selling price for specially designated claims has been paid.
     
  2. The processing or the reconstruction of our goods always takes place for us as a manufacturer without committing us to anything. We become co-owner of the new object in relation of the invoice value of our reserved goods to the value of the finished product. In these cases and if our goods are mixed, the buyer will keep our joint property for us free of charge.
     
  3. The owner is entitled to process the reserved goods in the proper business and to sell them himself as long as he is not in arrears with his payments to us. Mortgages and transfers of ownership as security on a debt are not admissible. The buyer is obliged to agree upon reservations of proprietary rights on his part.
     
  4. The buyer already transfers his claims resulting from the further sale or another legal justification concerning the reserved goods for the buyer together with all additional rights including his balance claims from the current account to us already now in order to ensure our claim. As far as we are entitled to a co-ownership, the claim transfer takes place in proportion to the value (see above item 2). We accept this transfer.
     
  5. We entitle the buyer to collect the claim transferred to us in his own name. We can cancel this power of collection if the buyer does not fulfil his payment obligations to us. For this case, the buyer is obliged to indicate the transfer to his customers and to give us all information and all documents free of charge which are necessary in order to assert our rights and claims against third parties legally.
     
  6. The buyer is obliged to indicate us any access to the reserved goods by third parties immediately and to make third parties aware of the fact that these goods are our property.
     
  7. Our reservation of proprietary rights is conditional in such a way that the possession of the reserved goods is transferred to the buyer when paying all of our claims. We will release the reserved goods according to our choice if and as far as the value of the reserved goods without VAT exceeds the invoice value of our total claims without VAT by more than 20%.
     
  8. We are entitled to ask the buyer any time what kind of reserved goods he has and where they are. Furthermore, we are entitled to look at the reserved goods any time at the place where they are.
     
  9. The buyer is obliged to ensure our goods against fire and theft and to give us proof of the conclusion of the insurance upon request.


B) EXECUTION OF THE DELIVERY

I  Delivery terms, delivery dates

  1. Our confirmation of order is decisive for the delivery terms and the delivery dates.
     
  2. If the buyer does not fulfil his contractual duties in time – this also applies to co-operation and/or additional duties - , the terms and dates are prolonged by the time during which the buyer does not fulfil his obligations to us. The fulfilment of the delivery terms requires the punctual receipt of all documents to be supplied by the costumer of all necessary authorizations and releases, especially of plans as well as the obedience to the payment conditions agreed upon and other obligations of the customer. Our rights resulting from the buyer’s delay remains unaffected.
     
  3. The time when the goods are dispatched ex works and ex warehouse is decisive for keeping the delivery terms and delivery dates. Terms and dates are already regarded as kept when the readiness for dispatch is reported if the goods cannot be dispatched in time through no fault of ours; in this case, we have to give proof of the fact that this is not due to a fault of ours.
     
  4. Cases of Acts of God and other events on which we have no influence and which make a delivery/performance considerably more difficult or even impossible for us exempt us from our obligations as stipulated in the individual contract; in the case of temporary events only for the duration of the hindrence plus a proper starting time when the hindrance no longer exists. If the buyer cannot be expected to bear the delay, he can withdraw from the contract in writing; this does not apply to a partial deliveries according to frame contracts.
     
  5. If we fall in arrears, the buyer may demand a compensation of 0,5% each for each full week of the delay, in total a maximum of 5% of the price for that part of the delivery which could not be taken into relevant operation due to the delay – if he substantiates that this has cused damages to him.
     
  6. If the dispatch or the delivery according to the customer’s wishes is delayed more than a month after the indication of the readiness for dispatch, the buyer may be charged with a storage fee of 0,5% of the price of the delivery objects, at the most of total of 5%, however, for each started month. If desired, the contracting parties may indicate higher or lower storage costs.

II  Partial deliveries

  1. We can deliver the ordered goods partially if the buyer can be expected to accept this. This does not affect the price. Every partial delivery is regarded as an independent transaction.

III  Dispatch and risk transfer

  1. The delivery takes place ex works or ex works or ex warehouse. Each dispatch and transport takes place exclusively at the risk of the buyer. When handling over the goods to the forwarding agent or the carrier, at the latest when leaving the works or the warehouse, however, the risk is transferred to the buyer.
     
  2. The transport risks are only ensured upon written request of the buyer at his expenses.
     
  3. If the delivery (shipping and transport) of the goods is delayed due to a reason caused by the buyer, we are entitled to store the goods at the expenses and at the risk of the buyer and with the exclusion of our liability, to take all measures which are suitable for maintaining the goods and to charge the goods as delivered. The same applies if goods which have been reported.


C) RIGHTS IN CASE OF A NEGLECT OF DUTIES - LIABILITY

I  Buyer’s rights in case of faults  

  1. The object of the contract is exclusively the sold product with the properties and the characteristics according to our order confirmation. Further properties and/or characteristics as well as suitability of the goods for a certain application purpose are only regarded as agreed upon if this is confirmed by us in writing. In addition to that, public statements, extolling or advertising are not regarded as information on the composition of the goods in accordance with the contract.
     
  2. Deviations of the delivered goods from the order confirmation which are common in this area of business are not regarded as a fault. Irrelevant deviations from the quality agreed upon or irrelevant impairments of the usefulness are not regarded as faults, either. Colour deviations of the plastic in accordance with the tolerance in the RAL area are not regarded as faults. The same applies to deviations in the execution and the number of the customer-specific printed and specially equipped parts.
     
  3. The time the goods are handed over to the forwarding agent or the carrier, at the latest the time when the goods leave the works or the warehouse is decisive for the state of the goods in accordance with the contract. The buyer has to inspect the goods for completeness and possible faults immediately after the transfer of the risk, at the latest after delivering or receiving the goods at the place of dispatch, and he has to reprimand obvious faults, especially incorrect deliveries and amount deviations outside the tolerance area immediately after the inspection or after a possible later detection. If the buyer does not make this immediate inspection and/or indicate the faults, the goods are regarded as approved according to § 377 HGB.
     
  4. In the case of faults, a fulfilment at a later time – according to the buyer’s choice either by removing the fault or by delivering a faultless object – has priority over reduction, withdrawal and compensation, unless we seriously and finally refuse the fulfilment at a later time or because of excessive costs or because it is not reasonable or has gone wrong. The buyer has to grant us an appropriate period of the time for the fulfilment at a later time, which must not exceed three weeks. The buyer may not refuse to accept deliveries because of irrelevant faults.
     
  5. The buyer has to give us immediately the opportunity to convince ourselves of the fault criticized by him, he has to supply us especially with the criticized goods or samples of it upon request. He is obliged to state all delivery dates in detail which result from the original packing. If the buyer does not give us the opportunity to convince ourselves of a fault or if he carries out changes and/or further processes without our consent, all claims for a fulfilment at a later time do not apply. A guarantee is only given if the products are properly further processed in accordance with appropriate standards and our separate notes.
     
  6. Guarantee claims against us are subject to a period of limitation of one year after delivery of the goods to the buyer or to a place of delivery stated by him.
     
  7. Claims against us because of malicious concealment of a fault or the explicit adoption of a quality guarantee solely follow the legal regulations.
     
  8. If the final buyer of the goods in a delivery chain is a consumer, the buyer may come back to us in accordance with the legal regulations according to §§ 478, 479 BGB if he has fulfilled his duties according to § 377 HGB.  

II  Limitation of the liability

  1. Our liability independent of our faults is excluded just like our liability for slightly negligent violations of irrelevant contract duties. In the case of slightly irrelevant violations of relevant contract duties, our liability is restricted to the average damage which can be predicted in accordance with the type of the goods which is typical for the contract and which is direct. This also applies to the slightly negligent duty violations of our legal representatives and of our vicarious agents.
     
  2. If we guarantee liability, we are only legally liable for compensations as far as the guarantee is given with the aim to ensure the customer against the occurring damages.
     
  3. Claims according to the product liability law remain unaffected. In addition to that, the previously mentioned liability exclusions and limitations do not apply damages to the life, the body or the health for which we are held responsible if we give a quality guarantee or if a fault is concealed maliciously.
     
  4. All compensation and expenditure claims against us are subject to a period of limitation of one year after a transfer of the danger to the customer, in the case of criminal liability starting with the knowledge or the grossly negligent non-knowledge of the circumstances on which the claim is based or of the person liable to pay compensation. This does not apply in the case of intent, in the previously mentioned cases in § 3 and to goods which have been used for a building in accordance with the normal manner of use and which have caused the faultiness. Possible shorter legal limitation period have priority.  

III  Impossibility; adaptation of the contract

  1. As far as the delivery is not possible due to reasons for which we are not responsible, the customer is entitled to claim compensations. His compensation claims are limited to 10% of the value of that part of the delivery which cannot be taken into relevant operation due to the impossibility. This limitation does not apply if a liability is necessary in the case of intention, of gross negligence or because of damages to the life, the body or the health; a change of the burden of proof to the disadvantage of the buyer is not linked to this. The right of the buyer to withdraw from the contract remains unaffected.
     
  2. As far as unpredictable events in the sense of B I.4 significantly change the economic meaning or the contents of the delivery or have significant influences on our operation, the contract is adapted properly by taking into account good faith. As far as this cannot be represented economically, we have the right to withdraw from the contract. If we want to use this right of withdrawal, we have to inform the buyer of this immediately after recognizing the consequences of the event, this also applies if a prolongation of the delivery period had initially been agreed upon with the buyer. 


D) OTHERS

I  Applicable law
 

The contract is solely subject to the law of the Federal Republic of Germany with the exclusion of the UN convention on contracts concerning the international sale of goods as of 10/04/1980 (CISG - Convention on Contracts for the International sale of Goods).

II  Place of jurisdiction

The place of jurisdiction – also for actions on bills and on checks – is Munich. We are also entitled to sue the buyer at his general place of jurisdiction. 

III  Reliability of the contract
 

The rest of the contract even remains binding if some of its regulations are legally void. This does not apply if the holding on to the contract would represent an unreasonable hardship for one of the parties.


GPS Prüftechnik, updated 09/2014

 


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