General Terms and Conditions: New Machinery Department

General Terms and Conditions: New Machinery Department

Gläsener+Schmidt GmbH
Gewerbering 6
82140 Olching
Germany

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

1. General Provisions

(1) Our terms of sale apply exclusively; we do not recognize any conflicting or deviating conditions of the customer unless we have expressly agreed to their validity in writing. Our terms of sale also apply if we carry out the delivery to the customer without reservation in the knowledge of conflicting or deviating conditions of the customer.
(2) Our General Terms and Conditions apply to all future transactions, even if no further reference is made to them at the time of conclusion.
(3) All agreements made between us and the customer for the purpose of executing the respective contract are laid down in writing in the respective contract.
(4) Our General Terms and Conditions apply only to entrepreneurs within the meaning of Section 310 (1) BGB.

2. Conclusion of Contract

(1) Our offers are always non-binding unless a binding period is expressly stated.
(2) An order placed by the customer, which represents an offer in accordance with Section 145 BGB, may be accepted by us within six weeks.
(3) A contract is only concluded upon our written order confirmation.
(4) The scope of our deliveries and services is defined in 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. Statutory VAT is charged additionally. For spare part orders placed after 4:30 p.m. with same-day delivery, a flat fee of €20.00 is 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: in accordance with the details in our invoices. The customer bears 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 does not make an agreed advance payment or final payment on time, we are entitled to withdraw from the contract. In this case, we are entitled to demand compensation for non-performance in the amount of a lump sum of 20% of the purchase price, unless the customer proves that we have incurred no damage or less damage. The assertion of higher damages remains unaffected.
(5) Paragraph 3 (4) applies accordingly if the buyer unjustifiably withdraws from the contract or refuses acceptance of the purchased item.

4. Delivery

(1) Our delivery obligation is subject to correct and timely self-delivery.
(2) The start of any delivery period specified by us requires the clarification of all technical questions as well as the submission of documents, approvals, and releases to be obtained by the customer, and the receipt of any agreed advance payment.
(3) Compliance with our delivery obligations also requires the timely and proper fulfillment of the customer's obligations. The defense of non-performance of the contract remains reserved.
(4) If shipment, commissioning, or acceptance is delayed for reasons attributable to the customer, or if he culpably violates cooperation obligations, we are entitled to demand compensation for the damage incurred, including any additional expenses. Further claims remain reserved. If storage occurs at our works/warehouse, we may charge 0.5% of the invoice amount per completed month, but no more than 5% of the invoice amount, plus statutory VAT, as compensation for expenses. The customer may provide evidence of a lesser or no damage.
(5) If the conditions of paragraph (4) are met, the risk of accidental loss or accidental deterioration of the delivery item passes to the customer at the moment he is in default of acceptance or debtor's delay.
(6) If the customer is in default of payment of an earlier delivery, we are entitled to withhold deliveries without being liable for damages.
(7) Partial deliveries are permitted and may be invoiced separately provided that the partial delivery represents a clearly definable service.
(8) We are liable in accordance with statutory provisions if the underlying transaction is a fixed transaction pursuant to Section 286 (2) No. 4 BGB or Section 376 HGB. The same applies if, as a result of a delay in delivery for which we are responsible, the customer asserts that his interest in continued performance of the contract has ceased.
(9) Otherwise, our liability for damages is governed by Section 8.

5. Advance Payment Guarantee

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

6. Retention of Title

(1) We retain title to the goods until all payments arising from the delivery contract have been received.
(2) In addition, we retain title to the goods until all payments arising from the ongoing business relationship with the customer have been received.
(3) In the event of conduct by the customer contrary to the contract, especially in the event of default of payment, we are entitled to take back the goods. The taking back of the goods constitutes a withdrawal from the contract. After taking back the goods, we are entitled to realize them; the proceeds of realization shall be credited against the customer's liabilities – less reasonable realization costs.
(4) The customer is obliged to handle the goods with care and, in particular, to insure them adequately at his own expense against fire, water, and theft damage at replacement value. If maintenance and inspection work is required, the customer must carry it out in good time at his 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 file a claim pursuant to Section 771 ZPO. If the third party is unable to reimburse us for the judicial and extrajudicial costs of such an action in accordance with Section 771 ZPO, the customer shall be liable for the loss incurred by us.
(6) The customer is entitled to resell the goods in the ordinary course of business; however, he hereby assigns to us all claims arising from the resale to his customers or third parties in the amount of the final invoice amount (including VAT) of our claim, regardless of whether the goods were resold without or after processing. The customer remains authorized to collect the claims even after the assignment. However, the assignment – including the sale of the claims to factoring banks – is only permitted with our prior written consent. Our right to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment, and no insolvency proceedings have been filed or suspension of payments exists. If this is the case, we may demand that the customer disclose to us the assigned claims and their debtors, provide all information required for collection, hand over the related documents, and notify the debtors (third parties) of the assignment. Upon our request, the customer is obliged to inform his customers immediately of the assignment to us – unless we do so ourselves – and to hand over the information and documents required for collection.
(7) Processing or transformation of the goods by the customer is always carried out for us. If the goods are processed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the goods (final invoice amount incl. VAT) to the other processed items at the time of processing. The same applies to the item resulting from processing as to the goods delivered under retention of title.
(8) We undertake to release 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%; we are responsible for selecting the securities to be released.

7. Warranty

(1) The customer’s warranty claims require that he has properly complied with his duties of inspection and notification of defects pursuant to Section 377 HGB.
(2) If a defect in the goods exists, we shall, at our discretion, provide subsequent performance by remedying the defect or delivering a new defect-free item. In the event of remedying the defect or replacement delivery, we shall bear the necessary expenses, in particular transport, travel, labor, and material costs, insofar as these are not increased by the goods having been taken to a place other than the place of performance.
(3) If the subsequent performance fails, the customer is entitled, at his discretion, to withdraw from the contract or to demand a reduction in price.
(4) If the complaint proves to be unfounded, the customer shall bear the costs incurred by our involvement.
(5) The limitation period for material defect claims is one year from delivery of the purchased item to the customer. Excluded from this are claims for damages for injury to life, body, or health and/or claims for damages due to intentional or grossly negligent breaches of duty. For these, the statutory limitation periods apply.

8. Compensation for Damages

(1) We are liable in accordance with statutory provisions insofar as 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 intentional breach of duty is attributable to us, liability for damages is limited to foreseeable, typically occurring damage.
(2) We are liable in accordance with statutory provisions if we negligently breach a material contractual obligation; even in this case, liability is limited to foreseeable, typically occurring damage.
(3) Liability for culpable injury to life, body, or health remains unaffected; the mandatory liability under the Product Liability Act likewise remains unaffected.
(4) In all other respects, liability is excluded.

9. Overall Liability

(1) Any further liability for damages beyond that provided for in Section 8 is excluded – irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty, or tort claims pursuant to Section 823 BGB.
(2) The limitation under paragraph (1) also applies insofar as the customer demands reimbursement of futile expenses instead of damages.
(3) Insofar as our liability is excluded or limited, this shall also apply to the personal liability 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.

Version: 01/2023