General Terms and Conditions of Business
General Terms and Conditions for deliveries of Getriebebau Nossen GmbH & Co. KG ("GBN")
If Customer uses General Terms and Conditions of Business ("GTC") as well, the contract is brought about even without expressly agreeing on the inclusion of the GTC. If the contents of the different GTC correspond to each other, these shall be deemed agreed upon. If the present GTC contain provisions that are not contained in the contracting party's GTC, the present GTC shall apply.
II. Quotation and conclusion of contract
1. All quotations shall be made without obligation. Any conclusions of contract and any further agreements (e.g. collateral agreements, modifications, warranties) shall only be valid after GBN's written confirmation thereof. GBN's written confirmation shall be decisive for the scope of services.
2. The documents pertaining to the quotation, such as images, drawings, specifications of weight and dimensions, shall only be roughly decisive unless they are expressly referred to as being binding. GBN reserves all property rights and copyrights of all offers, drawings and any further documents: They shall not be disclosed to third parties. Customer shall solely be responsible for the factual and technical correctness of the documents submitted by them.
III. Pricing and payment
Failing special agreement, all prices shall be deemed ex works including loading in works but excluding packing. Prices shall be subject to the addition of value-added tax at the respective statutory rate.
Failing special agreement, payment shall be made without any deductions or charges to GBN's stated account, namely a deposit of 30% on receipt of acknowledgement of the order and the remaining amount within 30 days of invoicing.
Any withholding of payments or offsetting due to any counterclaims Customer might have that GBN is denying or that have not been recognised by declaratory judgment shall be inadmissible.
If Customer does not pay according to contract, they owe interest on overdue accounts at the statutory rate.
If GBN as supplier is to deliver several orders of one and the same Customer, shipment of the subsequent orders shall only take place after Customer has paid for the preceding and due orders. If payments on account and/or payments by instalments have been agreed upon, shipment of the next due delivery shall only take place after the payment on account and/or payment by instalment has been fulfilled.
IV. Time and period of delivery
1. The delivery period shall start with sending the acknowledgement of the order but not before Customer has produced the documents, permits and releases they are to gather and not before an agreed deposit has been received.
The observance of any delivery time or period shall be subject to Customer's performing their contractual obligations and cooperating in any required form in due time.
2. The delivery period shall be deemed met if, until its expiry, the delivery item has left the works or we have communicated it to be ready for shipment.
3. In the event of measures in the scope of industrial action, especially strike and lockout, as well as the occurrence of unforeseen impediments GBN is not responsible for, the delivery period shall be reasonably extended as far as such impediments delay the completion or shipment of the delivery item. This shall also apply if the circumstances occur with subcontractors.
4. If Customer incurs damage due to a delay GBN is responsible for, the former may claim compensation for loss occasioned by the delay. Such compensation shall amount to 0.5 % for every full week of delay, however, in total no more than 5 % of the value of the complete delivery. Any further claims shall be excluded.
5. If shipment is delayed at Customer's request, upon one month's time of demonstration of readiness to ship, we shall charge them the costs resulting from storage, but in the case of storage in the GBN works, not less than 0.5 % of the invoiced amount for each month. However, upon fixing a reasonable period of time and upon its expiration without results, GBN shall be entitled to dispose of the delivery item in another way and supply Customer with it within an appropriately extended time period.
V. Passing of risk and acceptance
If Customer is an entrepreneur, the risk shall pass onto them at the latest when the delivery parts are dispatched. This shall also apply if there is a delivery in instalments or if GBN has undertaken further services such as shipping costs or transport and installation. The delivery item shall be deemed dispatched when it was loaded onto the delivery vehicle.
If there is a delay in shipment due to circumstances Customer is responsible for, the risk shall pass onto Customer from the day the delivery item is ready for shipment; however, GBN shall be obliged to effect the insurances Customer demands upon their request and at their expense. However, the effecting of Customer's insurances shall be subject to Customer's having paid the full insurance sum to GBN without undue delay.
Without prejudice to their rights under section VII, Customer shall take delivery of the supplied goods even if they are slightly defective.
A delivery in instalments shall be admissible.
10 days from taking delivery of the goods, the delivery shall be deemed accepted unless there is an agreement to the contrary.
VI. Reservation of title
Until receipt of all payments arising out of the supply contract, GBN retains title to the delivery item.
GBN shall be entitled to insure the delivery item at Customer's expense against theft, breakage, fire, water and any further damages, unless Customer has demonstrably effected the insurance themselves.
Customer may neither pledge the item nor assign it by way of security as long as they have not paid GBN. In the event of a seizure of property, attachment or any other third party decrees, Customer shall notify GBN of it without undue delay. If, in consequence of seizures and/or attachments, third party proceedings become necessary, Customer shall join GBN as intervener at Customer's expense.
In the event of a violation of any essential contractual obligation, especially any delay in payment, GBN shall be entitled to take back the delivery item. If the contract is a commercial transaction for both parties, GBN's taking back of the delivery item shall not constitute a cancellation of contract unless GBN has expressly declared so beforehand. GBN shall be entitled to sell the delivery item. The proceeds of the sale shall be set off against the trade accounts payable, with deduction of reasonable realisation costs.
VII. Liability for defects of the delivery
Without prejudice to section IX, GBN shall be liable for defects as follows:
GBN shall, at their option, repair or newly deliver all such parts free of charge that, within 6 months of their putting into operation, prove unserviceable or to a relevant degree unfit for their intended use due to circumstances which have originated prior to the passing of risk, especially due to defective design, raw materials of poor quality or defective workmanship. If Customer discovers such defects, they shall notify GBN of it without undue delay. Replaced parts shall become GBN's property. The latter shall not apply to such delivered parts or components that were erected from material or according to plans Customer has provided if the defectiveness of the delivered parts or components directly accrues from the defectiveness of the provided material or plans and GBN is not responsible for a violation of any testing obligation with respect to the provided material or plans. If shipment, installation or putting into operation are delayed without any fault on part of GBN, liability shall expire at the latest upon 12 months of the passing of risk.
If Customer is an entrepreneur, Customer's right to assert claims based on defects shall in all cases be subject to a 6-month limitation period from the date of the timely notice of defects, such limitation period, however, ending at the earliest upon expiry of the defects liability period.
No warranty shall be given for damages incurred as a result of the following: Inappropriate or improper use, incorrect installation and/or putting into operation by Customer or third parties, natural wear, incorrect or negligent handling, unsuitable subsoil, chemical, electrochemical or electrical influences, provided they cannot be attributed to a fault on part of GBN.
After being informed about it, Customer shall give GBN the time and opportunity needed for performing all repairs and delivering all spare parts GBN considers necessary as appears just to them, otherwise GBN shall be exempt from liability for defects. Only in urgent cases of a threat to industrial safety and to avert disproportionately high damages, whereas in such cases Customer shall notify GBN immediately, or if GBN is in default as regards the removal of the defect, Customer shall be entitled to remedy the defect themselves or have it remedied by third parties and to demand GBN to reimburse the necessary costs.
The spare part and repair shall be subject to a 3 months' defects liability period, however, said period shall terminate at the earliest upon expiry of the original defects liability period for the delivery item. The period for liability for defects of the delivery item shall be prolonged by the duration of the operational interruption caused by the remedial works.
Should Customer or third parties carry out improper modifications or repair works without GBN's prior agreement, GBN excludes any liability for consequences resulting thereof.
Any further claims of Customer, especially any claim for damages not having occurred on the delivery item itself, shall be excluded.
Customer shall be obliged to preserve all necessary evidence concerning the defect at their expense. The latter shall especially apply to circumstances and facts having lead to the alleged defect or having made it obvious. If Customer violates this obligation, claims based on defect shall be excluded.
VIII. Limitation on liability
Unless expressly provided otherwise by these Terms and Conditions, any Customer claims for damages and reimbursement of costs shall be excluded. The above exclusions shall not apply in the event of mandatory liability (for instance, under the Produkthaftungsgesetz, German Product Liability Act), in cases of gross negligence or injury to life and body.
IX. GBN's right to contractual adjustment, cancellation of contract
In the event of unforeseeable events within the meaning of section IV of the terms of delivery, as far as they substantially alter the economic importance or content of the performance or substantially affect GBN's operations, and in the event of the execution proving to be impossible afterwards, the contract shall be adapted appropriately. If the latter provision is not economically feasible, GBN shall be entitled to cancel all or any part of the contract. Customer shall not be entitled to any claims for damages due to such a cancellation. If GBN wants to make use of their right to cancel the contract, on realising the implications of the event, they shall notify Customer of it without undue delay, even if, at first, they had agreed on an extension of the delivery period with Customer.
X. Place of jurisdiction, choice of law
If Customer is an entrepreneur, a public law entity or special fund under public law, place of exclusive jurisdiction shall be Nossen, Germany. GBN shall also be entitled to bring any action or proceedings at Customer's registered place of business.
For all disputes arising under the contract, German substantive law shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
XI. Severability clause
The invalidity of any provision shall not affect any part of the remaining provisions and contract.
[The present translation of the General Terms and Conditions of Business is for information purposes only. Only the German version thereof is legally binding.]