1.1 The General Terms and Conditions of Sale and Delivery of Gollmer & Hummel (hereinafter referred to as “G&H”) shall apply exclusively. Any conflicting or deviating terms and/or conditions of contractual partners of G&H (hereinafter: “Purchaser”) shall not be recognized, unless G&H expressly accepts any conditions deviating herefrom in writing. The present Terms and Conditions of Sale and Delivery shall also apply in the event that G&H performs a delivery to Purchaser without reservation and in knowledge of any conflicting or deviating terms and conditions of Purchaser.
1.2 These Terms and Conditions of Sale and Delivery shall also apply to all future transactions with Purchaser.
1.3 All agreements entered into between G&H and Purchaser in executing this contract shall be set out in writing.
1.4 These Terms and Conditions of Sale and Delivery apply only to business enterprises (as defined in section 14 German Civil Code (BGB)), legal entities under public law and special funds under public law.
2 Conclusion of Contract
2.1 Quotations made by G&H shall be non-binding, unless they are expressly named as binding or include an acceptance deadline. G&H reserves the right to delist products, exclude products from delivery, and change prices. The scope of the delivery obligations of G&H shall be governed by the order confirmation. Oral agreements shall only become binding if confirmed in writing.
2.2 Paperwork, drawings, weights and dimensions, samples, etc. are only approximations and do not constitute promised characteristics. G&H is entitled to deviate from the descriptions in the quotation and/or the order confirmation provided that these deviations are not fundamental or important in nature and they do not jeopardize the purpose of the contract.
2.3 Insofar as G&H manufactures parts based on Purchaser drawings, drawings prepared by G&H and approved by Purchaser shall take precedence. Deviations from approved drawings shall be subject to a separate agreement and any resulting additional expenditure shall be remunerated.
3 Industrial Property Rights
3.1 G&H reserves the rights of ownership and copyright of all illustrations, drawings, calculations, and further documentation. This is particularly the case for written documents marked as “confidential”. Purchaser may make these available to third parties only with the prior written consent of G&H.
3.2 If the quotation from G&H is not accepted or the contractual relationship ends for any other reason, all illustrations, drawings, calculations, and further documentation shall be returned to G&H upon its first request. This shall also apply to the quotation documentation itself.
3.3 If supplied goods are based on drawings or other information provided by Purchaser and if this violates property rights held by third parties, Purchaser shall indemnify G&H internally from all claims.
4 Delivery/Delivery Time/Delayed Performance
4.1 Delivery deadlines and delivery dates shall be deemed agreed and binding if they are expressly agreed in writing. G&H shall not be bound to the delivery deadline or delivery date if Purchaser does not fulfill its obligations (payment of installments, provision of necessary documentation, etc.) in good time. G&H reserves the right to plead non-performance of the contract.
4.2 Delivery deadlines shall begin on the day on which the contract was concluded in writing, at the earliest, and subject to the clarification of all technical queries.
4.3 If Purchaser subsequently wishes to make changes, G&H shall be released from the duty of compliance with the delivery date or delivery deadline.
4.4 The delivery deadline shall be deemed to have been met if the object of delivery has left the factory of G&H or G&H has notified Purchaser that it is ready to ship before the deadline has elapsed.
4.5 Purchaser shall not be entitled to assert any claims for delays in delivery that are not attributable to intent or gross negligence on behalf of G&H. This shall apply in particular to delays in delivery attributable to force majeure. In such cases, the agreed delivery date or delivery deadline shall be postponed in line with the duration of the impediment to delivery.
4.6 Return consignments shall be permitted only with the express prior consent of G&H. Parts from the current range returned with such consent shall be in their original packaging and in perfect, sellable condition. Returns shall be sent carriage paid and at the risk of the sender, with the deduction of a 15% return fee. Administrative fees, e.g. for recoding, cleaning and repackaging, shall be deducted based on actual expenditure.
4.7 If Purchaser is in default of acceptance or violates other duties of cooperation, G&H shall be entitled to demand compensation for the damage incurred in this respect, including any additional expenses. Furthermore, G&H is entitled to set the customer an appropriate time limit for acceptance and after expiry of such without result to withdraw from the contract and claim damages in lieu of performance.
5 Transfer of Risk/Packaging
5.1 The risk of accidental loss or accidental deterioration of the delivered goods shall pass to Purchaser at the latest upon handover of the object of delivery (based on the start of the loading process) to the forwarding agent or carrier or upon the dispatch of the goods. This shall apply even if partial deliveries are made, which are expressly permitted insofar as punctual, full delivery of all ordered goods is not possible for reasons beyond G&H’s control.
5.2 Deliveries shall be made “ex works”. G&H is only obliged to insure the goods against insurable risks at Purchaser’s explicit written request.
5.3 Returned transport packaging and any other packaging as defined by the German Packaging Ordinance shall not be accepted, with the exception of pallets. Purchaser is obligated to dispose of the packaging at its own expense.
6 Prices and Terms of Payment
6.1 In the absence of any separate agreements, prices shall always be “ex works”, including loading at the factory, but excluding packaging, which shall be invoiced separately.
6.2 The named prices shall always be understood as net; the amount of statutory sales tax due on the invoice date shall be added to the invoice and indicated separately.
6.3 In the absence of any separate agreements, claims arising from the contract shall be due pro rata as follows:
Payment shall be made within 30 days of the invoice date without prompt payment discount. A cash discount shall only be deemed to have been agreed if expressly confirmed in writing by G&H. G&H reserves the right to supply new customers only against prepayment or cash on delivery.
6.4 G&H shall be entitled to initially credit any payment to the oldest, unpaid debt, even if the payment is intended by Purchaser for other purposes. Should costs or interest have already accrued, G&H shall be entitled to credit payments first to the costs, then to the interest, and finally to the outstanding balance.
6.5 Purchaser shall be entitled to the right to offset only if and insofar as its counterclaims have been legally asserted, are undisputed or have been acknowledged in writing by G&H. The customer's right of retention shall be limited to claims arising from the contractual relationship.
6.6 G&H shall be entitled to demand default interest of 9% above the base rate pursuant to section 247 German Civil Code (BGB).
7 Retention of Title
7.1 G&H shall retain title to all delivered parts until receipt of all payments arising from the delivery contract, including future payments. In the event of breach of contract, in particular in the event of delay in payment, G&H shall be entitled to reclaim the purchased item.
7.2 Purchaser is obliged to treat the delivered parts with care and to insure them at its own expense against any form of loss at replacement value for the duration of the retention of title.
7.3 Costs for maintenance and inspection work shall be borne by Purchaser also during the retention of title, even if such work is performed by G&H.
7.4 In the event of seizures or other interventions by third parties, Purchaser shall immediately notify G&H in writing so that G&H can file a third-party action against the seizure or intervention. Insofar as the third party is not in a position to reimburse the judicial and extrajudicial costs of such an action, Purchaser shall be liable for these costs.
7.5 Purchaser shall be entitled to resell the purchased item in the ordinary course of business. However, Purchaser hereby assigns to G&H all receivables to the amount of the final invoice amount (including sales tax) of G&H's claim, which accrue to Purchaser from the resale against its customers or third parties, irrespective of whether the purchased item was resold without or after processing. Purchaser shall remain entitled to collect these receivables even after delivery. This shall not affect G&H’s right to collect the receivables itself. However, G&H undertakes not to collect the receivables as long as Purchaser meets its payment obligations arising from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and there is no cessation of payments.
7.6 If the delivered goods are inseparably mixed or combined with other items not belonging to G&H, G&H shall acquire co-ownership of the new or combined item in the ratio of the value of the delivered goods (final invoice amount, including sales tax) to the other item(s) at the time of mixing or combining. Purchaser shall hold the sole or co-ownership thus created in safe custody for G&H.
7.7 The payment of a share of the cost of tools shall not give the Purchaser any right to these tools; they shall remain the sole property of G&H.
8 Liability for Defects/General Liability
8.1 Unless agreed otherwise below, the statutory warranty rights for defects shall apply.
8.2 G&H shall not be liable for any damages caused by misuse, improper use, wear, storage, or other actions by Purchaser or third parties.
8.3 The limitation period for claims due to defects in the goods shall be one year, irrespective of the legal grounds. This shall not apply in the case of section 438(1) no. 2 and section 634a(1) no. 2 German Civil Code (BGB) or in the case of malicious concealment of a defect. In this case, the statutory limitation period shall apply. This does not constitute a guarantee of durability.
8.4 Purchaser is obliged to fulfill its obligation to inspect the goods in accordance with section 377 German Commercial Code (HGB).
8.5 G&H reserves the right to choose between supplementary performance and replacement delivery.
8.6 The expenses required for the purpose of supplementary performance shall not be borne by G&H insofar as expenses are increased because the goods have been delivered to a place other than Purchaser’s registered office after delivery or have been installed at the end customer’s premises. This does not apply if the transfer constitutes the intended use of the item.
8.7 Purchaser’s right of recourse against G&H due to such claims arising from liability for material defects, which are asserted against Purchaser by its customers, shall be excluded if Purchaser has not fulfilled its obligation to examine the goods and to give notice of defects or if the goods have been modified by processing. In all other respects, this shall not affect the rights of recourse pursuant to section 478 German Civil Code (BGB), in particular the statutory limitation periods.
8.8 G&H’s liability under the statutory provisions for damages is unlimited if a breach of duty attributable to G&H is based on intent or gross negligence. Insofar as the breach of duty attributable to G&H is based on simple negligence and an essential contractual obligation is culpably breached, the liability for damages shall be limited to the foreseeable damage that typically occurs in comparable cases. In all other respects, liability is excluded.
8.9 Liability under the terms of the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected. Liability for injury to life, limb and health shall also remain unaffected.
8.10 The above provisions do not entail the transfer of the burden of proof to Purchaser.
9 Non-assignment Clause
All claims of Purchaser against G&H arising from the contractual relationship are non-assignable.
10 Product Liability
10.1 Purchaser may only use the goods for their intended purpose and shall ensure that these goods are only sold on to persons familiar with the product hazards and risks.
10.2 If using the goods as a basic material and partial product of its own products, Purchaser is obligated to fulfill its duty to issue a warning when placing the end product on the market, also in respect of the goods supplied by G&H. However, Purchaser shall indemnify G&H against the assertion of claims in the event of violation of this obligation at its first request.
11 Data Protection
12 Miscellaneous/Closing Provisions
12.1 The place of performance shall be Straubenhardt.
12.2 The place of jurisdiction for all and any disputes arising under the present agreement shall be the competent court for Straubenhardt. G&H shall however be entitled to bring an action against Purchaser at a court where Purchaser has its general place of jurisdiction or where Purchaser has a branch office.
12.3 The present agreement shall be governed exclusively by German law. The UN Convention on Contracts for the International Sale of Goods shall not apply.
12.4 Insofar as a clause of this agreement is void or ineffective, this shall not affect the remaining provisions. The parties shall endeavor to replace the invalid provision with a valid one that most closely reflects the economic purpose of the contract.