Neumaschinen
Gebrauchtmaschinen
Dienstleistungen
Unternehmen
Department of New Machinery
Gläsener+Schmidt GmbH
Gewerbering 6
82140 Olching
Germany
General Terms
Conclusion of Contract
Prices and Payment Terms
Delivery
Advance Payment Guarantee
Retention of Title
Warranty
Claims for Damages
Overall Liability
Place of Performance, Jurisdiction
1. General Provisions
(1) Our terms and conditions of sale apply exclusively. We do not recognize any terms and conditions of the customer that contradict or differ from our terms and conditions unless we have explicitly agreed to their application in writing. Our terms and conditions apply even if we carry out the delivery to the customer without objection, despite being aware of the customer's conflicting or differing terms.
(2) Our General Terms and Conditions apply to all subsequent transactions, even if no further reference is made to them at the time of conclusion of the contract.
(3) All agreements made between us and the customer for the execution of the respective contract are recorded in the contract in text form.
(4) Our General Terms and Conditions apply only to entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB).
2. Conclusion of Contract
(1) Our offers are always non-binding unless a specific deadline for acceptance is expressly mentioned.
(2) An order from the customer, which constitutes an offer in accordance with Section 145 BGB, can be accepted by us within six weeks.
(3) A contract is concluded only when we accept an order in text form.
(4) The scope of our deliveries and services is determined by the order confirmation.
3. Prices and Payment Terms
(1) All prices are ex works/warehouse, including loading at the works/warehouse, but excluding packaging and transport, unless otherwise agreed. Prices are subject to the applicable VAT. For spare parts ordered after 4:30 PM and delivered on the same day, a handling fee of €20.00 will be charged.
(2) Payment is due without any deductions, as follows:
a) Machines: according to our order confirmation.
b) Services, accessories, and spare parts: as indicated in our invoices. The customer bears the cost of the payment transaction.
(3) Offsetting with any counterclaims is excluded unless the counterclaim is undisputed or has been legally established.
(4) If the buyer does not make the agreed down payment or final payment on time, we are entitled to withdraw from the contract. In this case, we are entitled to claim compensation for non-performance amounting to a flat rate of 20% of the purchase price, unless the customer proves that no damage or less damage has occurred. We remain entitled to assert a higher damage claim.
(5) Clause 3 (4) applies accordingly if the buyer unjustifiably withdraws from the contract or refuses to accept the purchased goods.
4. Delivery
(1) Our delivery obligation is subject to the actual and timely self-delivery.
(2) The start of any delivery period stated by us depends on the clarification of all technical issues, the submission of documents, approvals, and releases to be provided by the customer, as well as the receipt of an agreed down payment.
(3) The fulfillment of our delivery obligation further depends on the timely and proper fulfillment of the customer’s obligations. The plea of non-performance remains reserved.
(4) If shipping, commissioning, or acceptance is delayed for reasons for which the customer is responsible, or if the customer culpably violates other cooperation obligations, we are entitled to demand compensation for any damage and additional expenses incurred as a result. Further claims or rights remain reserved. If the storage takes place in our works/warehouse, we may charge a storage fee of 0.5% of the invoice amount for each completed month of storage, but no more than 5% of the invoice amount, plus VAT at the applicable statutory rate. The customer may prove that no or less damage has occurred.
(5) If the conditions in paragraph (4) apply, the risk of accidental loss or deterioration of the goods passes to the customer at the point in time when the customer is in default of acceptance or performance.
(6) If the customer is in default of payment for a previous delivery, we are entitled to withhold further deliveries without being obliged to compensate for any resulting damage.
(7) We are entitled to make partial deliveries and invoice them, provided that each delivery part constitutes a self-contained service.
(8) We are liable according to statutory provisions if the underlying purchase contract constitutes a fixed-date contract within the meaning of Section 286 (2) No. 4 BGB or Section 376 HGB. We are also liable according to statutory provisions if, due to a delay in delivery attributable to us, the customer is entitled to claim that their interest in further performance of the contract has ceased.
(9) In all other cases, our liability for damages is governed by Clause 8.
5. Advance Payment Guarantee
If we have provided an advance payment guarantee for an advance payment made by the customer, the customer is obliged to return the guarantee certificate to us within one week after delivery of the purchased goods.
6. Retention of Title
(1) We retain ownership of the goods until all payments under the supply contract have been received.
(2) Furthermore, we retain ownership of the goods until all payments arising from the business relationship with the customer have been received.
(3) In case of the customer’s breach of contract, particularly in the event of payment default, we are entitled to take back the goods. The taking back of the goods by us is considered a withdrawal from the contract. After taking back the goods, we are entitled to dispose of them, and the proceeds from the sale will be applied to the customer’s liabilities, minus reasonable disposal costs.
(4) The customer is obliged to handle the goods with care, in particular, to insure them adequately at replacement value against fire, water, and theft damages at their own expense. If maintenance and inspection work is required, the customer must carry out this work at their own expense in a timely manner.
(5) In the case of attachment or other third-party interventions, the customer must notify us immediately in writing, so that we can take legal action in accordance with Section 771 of the Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for the legal and extrajudicial costs of a lawsuit according to Section 771 ZPO, the customer is liable for the loss incurred by us.
(6) The customer is entitled to resell the goods in the ordinary course of business; however, the customer hereby assigns to us any claims arising from the resale of the goods, in the amount of the invoice total (including VAT), regardless of whether the goods are resold before or after processing. The customer remains authorized to collect these claims even after the assignment. The customer may assign these claims, including selling them to factoring banks, only with our prior written consent. Our right to collect the claims remains unaffected. However, we undertake not to collect the claims as long as the customer fulfills their payment obligations from the proceeds received, is not in payment default, and no application for insolvency or settlement proceedings has been filed or payment suspension exists. If this is the case, we may request the customer to provide us with information about the assigned claims and their debtors, to give all necessary details for collection, to hand over the relevant documents, and to notify the debtors (third parties) of the assignment. Upon our request, the customer is obliged to immediately inform their customers of the assignment to us, unless we do so ourselves, and to provide us with the necessary information and documents for collection.
(7) Any processing or transformation of the goods by the customer is always done for us. If the goods are processed with other items not owned by us, we acquire joint ownership of the new item in proportion to the value of the goods (final invoice amount, including VAT) compared to the other processed items at the time of processing. The same applies to the processed item as for the goods delivered under retention of title.
(8) We undertake, at the customer’s request, to release the securities to which we are entitled to the extent that the realizable value of our securities exceeds the secured claims by more than 10%; the selection of the securities to be released is at our discretion.
7. Warranty
(1) The customer’s claims for defects are contingent on the customer having properly fulfilled their inspection and notification obligations under Section 377 HGB.
(2) If a defect in the goods exists, we will, at our discretion, provide a remedy in the form of either defect rectification or delivery of a new, defect-free item. In the case of defect rectification or replacement delivery, we are obliged to bear all costs necessary for the remedy, particularly transport, travel, labor, and material costs, unless these increase because the goods have been transported to a place other than the place of performance.
(3) If the remedy fails, the customer is entitled to withdraw from the contract or demand a reduction in the purchase price.
(4) If the complaint proves to be unjustified, the customer shall bear the costs incurred by us for the claim.
(5) Claims for defects by the customer expire one year from the delivery of the purchased item to the customer. This does not apply to claims for damages arising from injury to life, body, or health, and/or claims for damages resulting from gross negligence or willful misconduct on our part. In these cases, the statutory limitation periods apply
8. Claims for Damages
(1) We are liable according to statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence by our representatives or vicarious agents. If no willful breach of contract is attributed to us, our liability for damages is limited to the foreseeable, typically occurring damage.
(2) We are liable according to statutory provisions if we culpably violate a material contractual obligation; even in this case, however, our liability for damages is limited to the foreseeable, typically occurring damage.
(3) Liability for the culpable violation of life, body, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(4) Unless otherwise stated above, liability is excluded.
9. Overall Liability
(1) Any further liability for damages beyond that provided in Clause 8 is excluded, regardless of the legal nature of the asserted claim. This particularly applies to claims for damages arising from fault at the time of conclusion of the contract, from other breaches of duty, or from tortious claims for compensation of property damage in accordance with Section 823 BGB.
(2) The limitation in paragraph (1) also applies if the customer demands compensation for useless expenses instead of a claim for compensation of damage instead of performance.
(3) To the extent that our liability for damages is excluded or limited, this also applies to the personal liability for damages of our employees, workers, staff, representatives, and vicarious agents.
10. Place of Performance, Jurisdiction
(1) The place of performance for all claims arising from the contractual relationship is Olching.
(2) The place of jurisdiction is Munich.
(3) German law applies; the applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
Status: 01/2023
Gläsener + Schmidt GmbH
Gewerbering 6
82140 Olching
+49 8142 4487-100
info@gs-wzm.de