General Terms and Conditions: New Machinery Division

General Terms and Conditions: New Machinery Division

Gläsener+Schmidt GmbH
Gewerbering 6
82140 Olching
Germany

1. General
2. Conclusion of Contract
3. Prices and Terms of Payment
4. Delivery
5. Advance Payment Guarantee
6. Retention of Title
7. Warranty
8. Claim for Damages
9. Overall Liability
10. Place of Performance, Jurisdiction

1. General

(1) Our terms of sale apply exclusively; we do not recognize any terms of the customer that conflict with or deviate from our terms of sale unless we have expressly agreed to their validity in writing. Our terms of sale also apply if we execute delivery to the customer without reservation in the knowledge of the customer’s terms that conflict with or deviate from our terms of sale.
(2) Our General Terms and Conditions apply to all subsequent transactions, even if reference is not made to them again at the conclusion thereof.
(3) All agreements made between us and the customer for the purpose of executing the respective contract are set down in writing in the respective contract.
(4) Our General Terms and Conditions apply only to entrepreneurs within the meaning of § 310 para. 1 of the German Civil Code (BGB).

2. Conclusion of Contract

(1) Our offers are always non-binding unless a binding period is expressly stated.
(2) An order from the customer, which constitutes an offer pursuant to § 145 BGB, can be accepted by us within six weeks.
(3) A contract is only concluded when we accept an order in writing.
(4) The scope of our deliveries and services is determined by the order confirmation.

3. Prices and Terms of Payment

(1) Unless otherwise agreed, all prices are ex works/warehouse, including loading at the works/warehouse, but excluding packaging and transport. Value-added tax at the statutory rate shall be added to the prices. For spare part orders placed after 4:30 p.m. with same-day delivery, a flat fee of €20.00 will be charged.
(2) Payment shall be made without any deduction, as follows:
a) Machines: in accordance with our order confirmation.
b) Services, accessories, and spare parts: as stated in our invoices. The customer shall bear the costs of payment transactions.
(3) Offsetting with counterclaims of any kind is excluded unless the counterclaim is undisputed or has been legally established.
(4) If the buyer fails to make an agreed advance payment or the balance payment on time, we are entitled to withdraw from the contract. In this case, we are entitled to claim damages for non-performance in the amount of a flat rate of 20% of the purchase price, unless the customer proves that we have suffered no loss or a lesser loss. We remain entitled to assert any higher damages.
(5) Clause 3 (4) applies accordingly if the buyer unlawfully withdraws from the contract or refuses acceptance of the purchased item.

4. Delivery

(1) Our obligation to deliver is subject to actual and timely self-supply.
(2) The commencement of any delivery period we specify is subject to the clarification of all technical matters, the submission by the customer of any documents, permits, and approvals to be obtained by them, as well as receipt of any agreed advance payment.
(3) Compliance with our delivery obligations further requires the timely and proper fulfilment of the customer’s obligations. The defense of non-performance remains reserved.
(4) If dispatch, commissioning, or acceptance is delayed for reasons attributable to the customer, or if the customer culpably breaches other duties to cooperate, we are entitled to claim compensation for the resulting damages, including any additional expenses incurred. Further claims or rights remain reserved. If storage takes place at our works/warehouse, we may charge 0.5% of the invoice amount per completed month of storage as compensation for expenses, up to a maximum of 5% of the invoice amount, plus VAT at the applicable statutory rate. The customer retains the right to prove that we have suffered no loss or a lesser loss.
(5) If the conditions set out in paragraph (4) apply, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time they fall into default of acceptance or debtor’s delay.
(6) If the customer is in default with payment for a previous delivery, we are entitled to withhold deliveries without being obliged to compensate for any resulting damages.
(7) We are entitled to make partial deliveries and to invoice them, provided that the partial delivery constitutes a stand-alone service.
(8) We are liable in accordance with the statutory provisions if the underlying purchase contract is a fixed-date transaction within the meaning of § 286 para. 2 no. 4 BGB or § 376 HGB. We are also liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that their interest in further performance of the contract has ceased.
(9) In all other respects, our liability for damages is governed by clause 8.

5. Advance Payment Guarantee

If, according to agreement with the customer, we have provided an advance payment guarantee for an advance payment made by them, the customer is obliged to return the guarantee certificate to us within one week after delivery of the purchased item.

6. Retention of Title

(1) We retain ownership of the goods until receipt of all payments arising from the delivery contract.
(2) Furthermore, we retain ownership of the goods until receipt of all payments arising from the business relationship with the customer.
(3) In the event of conduct by the customer in breach of contract, in particular in the case of payment default, we are entitled to take back the goods. The taking back of the goods by us constitutes withdrawal from the contract. After taking back the goods, we are entitled to realize them, and the proceeds from realization shall be offset against the customer’s liabilities – less reasonable realization costs.
(4) The customer is obliged to handle the goods with care; in particular, they are obliged to adequately insure them at their own expense against fire, water, and theft damage at their replacement value. If maintenance and inspection work is required, the customer must carry this out in due time at their own expense.
(5) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can bring an action in accordance with § 771 ZPO. If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of such an action in accordance with § 771 ZPO, the customer shall be liable for the loss we have incurred.
(6) The customer is entitled to resell the goods in the ordinary course of business; however, they hereby assign to us all claims in the amount of the final invoice amount (including VAT) of our claim that accrue to them from the resale against their customers or third parties, irrespective of whether the goods were resold without or after processing. The customer remains authorized to collect these claims even after the assignment. The assignment of the claims – including the sale of claims to factoring banks – is permitted to the customer only with our prior written consent. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the customer meets their payment obligations from the collected proceeds, is not in default of payment, and in particular, no application for the opening of composition or insolvency proceedings has been filed, nor is there any suspension of payments. Should this be the case, we may demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. At our request, the customer is obliged to immediately inform their customers of the assignment to us – provided we do not do so ourselves – and to provide us with the information and documents required for collection.
(7) The processing or transformation of the goods by the customer shall always be carried out on our behalf. If the goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods (final invoice amount, including VAT) to the other processed items at the time of processing. For the item created by processing, the same shall apply as for the goods delivered under retention of title.
(8) We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of securities to be released shall be ours.

7. Warranty

(1) The customer’s claims for defects are subject to the customer having properly complied with their duties of inspection and notification of defects owed under § 377 HGB.
(2) Insofar as there is a defect in the goods, we shall, at our discretion, provide subsequent performance by remedying the defect or delivering a new defect-free item. In the case of defect remediation or replacement delivery, we are obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, insofar as these are not increased by the goods having been taken to a location other than the place of performance.
(3) If the subsequent performance fails, the customer shall be entitled, at their discretion, to withdraw from the contract or to demand a reduction in price.
(4) If the complaint proves to be unfounded, the client shall bear the costs incurred by our intervention.
(5) The customer’s claims for material defects shall become statute-barred one year after delivery of the purchased item to the customer. Excluded from this are claims for damages due to injury to life, body, or health and/or claims for damages based on damages caused by us through gross negligence or willful misconduct. In this respect, the statutory limitation periods shall apply.

8. Claim for Damages

(1) We are liable in accordance with the statutory provisions if the customer asserts claims for damages that are based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, liability for damages is limited to the foreseeable, typically occurring damage.
(2) We are liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; however, even in this case, liability for damages is limited to the foreseeable, typically occurring damage.
(3) Liability for culpable injury to life, body, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(4) Unless otherwise stipulated above, liability is excluded.

9. Overall Liability

(1) Any further liability for damages than provided for in clause 8 is excluded – regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty, or from tortious claims for compensation for property damage in accordance with § 823 BGB.
(2) The limitation under paragraph (1) also applies insofar as the customer, instead of claiming damages in lieu of performance, demands reimbursement of futile expenses.
(3) Insofar as liability for damages against us is excluded or limited, this shall also apply with regard 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) The law of the Federal Republic of Germany applies; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.

Status: 01/2023