Terms and Conditions
I. Validity Range
- The following terms and conditions apply for all contracts, deliveries and services between the company Franz Gottwald GmbH + Co. KG (following: GOTTWALD) and our customers who are entrepreneurs, legal persons by public law or special fund under public law.
- We do not accept opposing or deviating conditions of our general terms and conditions unless we have accepted their validity in written form explicitly.
- For all future businesses with a customer who is a entrepreneur, legal person by public law or special fund under public law, the sales and delivery conditions of GOTTWALD apply even without referring to them.
II. Offer and Contract Conclusion
- A contract can only be achieved by an acceptance confirmation in text form. An acceptance declaration is leveled with the order confirmation or billing of the order as well as with the service provision.
- Our offers are non-binding. GOTTWALD reserves the right to change deliveries/services insofar these will improve the technical standard and / or will be relevant in the interest of the performance and reasonable for the customer, especially if the quality of the delivery / service for the intended purpose will not be affected.
- The in catalogues, brochures, newsletters, advertisements, copies and comparable public recommendations, also via electronic media, containing data about services, dimensions, weights, prices and anything else like that are non-binding, insofar there will not be contractual content.
- The including documents to a contract like pictures, drawings, weight and dimension specifications are only roughly decisive as long as they are not explicitly termed as binding.
- Oral and written specifications about suitability and application possibilities of the from GOTTWALD delivered goods as well as consultations and recommendations by employees of GOTTWALD are made to the best of our knowledge. They are non-binding and establish neither a contractually legal relation nor a secondary obligation from the contract. Especially the customer will not be exempted from the obligation to inspect the goods on suitability for the intended purpose. The same also applies for the work, service, company and other performances.
III. Prices and Payment Conditions
- Prices are generally in Euro (€), excluding the respectively valid legal value added tax.
- Prices for goods are quoted ex-warehouse and particularly do not cover setup and assembly on-site as well as installation and putting into service. For ordered work, service, company or other performances, the price covers the provision of services at the company GOTTWALD. In cases of costs for transportation or insurance for the delivery of goods as well as costs for time of travelling, working and waiting, and road costs and separation allowances, they will be invoiced separately. Repair work and other performances will be invoiced separately unless it is a reparation in the scope of a warranty.
- Payments are due net cash immediately. Payment default occurs without a prior reminder not later than 14 days according to invoice date and due date. In case of a payment default referring to the payment the customer owes 8% default interest above the base interest rate according to § 288 BGB (German Civil Code). A further damage caused by delay of GOTTWALD shall remain free.
- It is only allowed for the customer to add indisputable or legally determined claims. The same applies for the assertion of a right of retention.
- The compliance of periods and deadlines requires the timely receipt of all from the customer to be delivered documents, information, files and approvals as well as the compliance of the agreed payment conditions and other advance obligations by the customer. Shall these obligations not be met in a timely manner, the periods will extent appropriately; this does not apply if GOTTWALD is responsible for the delay.
- GOTTWALD is entitled for partial deliveries insofar they are reasonable for the customer. Partial deliveries can be invoiced immediately.
- GOTTWALD is entitled to employ external auxiliary persons.
- Disturbances in cases of force majeure and reasons which are not in our area of risk like e.g. strike, track or road closure, war, terrorism, riots, official measures and other unpredictable and unavoidable incidents which GOTTWALD prevents of the contract execution, release GOTTWALD from the contract performance until the force majeure disappeared plus a sufficient time of beginning. If the disturbance does take longer than three months, every part of the contract has the right to withdraw from the contract within one week in written form. Further claims are excluded in this case.
V. Additional Services
- If we are commissioned with the assembly, disassembly, maintenance or putting into service of aggregates, hydraulic or pneumatic plants (including or excluding of attaching of connecting parts) in connection with or outside of purchase orders, the following conditions apply, unless nothing else is additionally agreed in writing in a contract conclusion:
- If a remuneration agreement is not arranged in the contract, our current price lists apply.
- If installation, assembly, disassembly, maintenance or putting into service is delayed by circumstances, which are not our fault, especially on construction sites, the customer has to bear the costs for waiting time and further necessary trips of our personnel according to our price lists.
- The customer has to inform us about the exact local circumstances and about specialties prior to the begin of our service. The agreed remuneration is based on a unrestricted access to the location of our service.
VI. Title Retention
- GOTTWALD reserves the title to the delivery item until full payment of all claims of the present business relation has been made.
- The customer assigns already now the claims and remuneration claims (e.g. tortious act, insurance claims) according to the reservation product in the amount of the invoice value to GOTTWALD.
- The reservation product which is in the ownership of GOTTWALD must be insured against fire, water, theft and burglary in commercial business transactions for the time of title retention. The rights of these insurances must be assigned to GOTTWALD whereas GOTTWALD accepts this assignment.
- The purchaser has the right to sell the delivery item in an ordinary course of business; he or she assigns to GOTTWALD all claims in the amount to the sum total of the invoice (including value added tax) to the claims of GOTTWALD which accrue from the selling to the purchaser or third parties whether or not the delivery item has been sold prior or after a processing. The purchaser is still entitled to the collection of claims after the assignment. The authorization of GOTTWALD to collect the claims remain unaffected. GOTTWALD is committed not to collect the claim as long as the purchaser meets his or her payment obligations and is not in default of payment and especially an application of opening an insolvency procedure has not been made or a cessation of payment has been made. If this is the case GOTTWALD can request that the purchaser announces the assigned claims and its debtors, gives all details which are necessary for the collection of claims, hands over the associated documents and informs the debtors (third parties) about the assignments.
- The processing or reshaping of the delivery item by the purchaser will always be undertaken for GOTTWALD. If the delivery item will be processed with items which do not belong to GOTTWALD, GOTTWALD purchase co-ownership of the new item in relation to the value of the delivery item and the other processed items at the time of processing. For the new item which results through processing applies the same as for the delivered item with reservation. GOTTWALD is committed to release the securities due to GOTTWALD if required by the purchaser inasmuch as the realizable value of our security exceeds the securing claims by more than 20%, the selection of the to be released securities is with GOTTWALD.
- In case of behaviour contrary to the contract, especially in case of default in payment, GOTTWALD has the right to take back the delivery item after a reminder and the purchaser is committed to give the item back. GOTTWALD has the right to utilize the item after tacking it back, its utilization proceeds must be taken into account on the liabilities of the purchaser -deducting reasonable utilization costs.
- An application of opening an insolvency procedure -no matter who applies- gives GOTTWALD the right to withdraw from the contract and to demand the immediate return of the delivery item.
VII. Completion Retention / Embargo Term
- The fulfillment of the contract is under the provision that no obstacles on the basis of applicable economic, trade or financial sanctions or embargos of the European Union or the Federal Republic of Germany or other international applicable regulations are opposed to it. This applies also for economic, trade or financial sanctions or embargos which are imposed by the United States of America insofar European and German regulations are opposed to it.
- The customer is committed to produce all information and documents which are necessary for the export, shipment or import or which are requested by an authority or other public bodies.
- The customer is solely responsible for the adherence of embargo regulations and trade restrictive measures, especially on the basis of foreign trade regulations. He or she must inspect specially and has to make sure that he or she does not violate these regulations, not by passing on to third parties, not by procurement of contracts with such goods, work and service performances or by provision of other economical resources in combination with such goods, work and service performances which violates an embargo of the European Union, the United States of America and/or of the United Nations, also in consideration of possible restrictions for domestic businesses and possible prohibitions of by-passing; further on not with such goods, work and service performances which are subject to a prohibited usage or authorization like being relevant to defense, nuclear or weapon technology unless possible permissions are present. The regulations of all relevant sanctions lists of the European Union and the United States of America according to business transactions with enterprises, persons or organizations mentioned there must be met.
- The customer is especially committed to inform GOTTWALD immediately and unsolicited, if he or she has the intention to deliver and use from GOTTWALD purchased products and performances to areas which are subject to such regulations. He or she will release GOTTWALD from legal consequences which result from violation of such regulations and will pay compensation if necessary.
- The customer has to inspect the delivered goods immediately after handover so far it is feasible according to a proper course of business. Recognized defects, wrong quantities or wrong deliveries must be reported to GOTTWALD immediately in written form. The complaint period is not longer than 10 days; significant is the receipt of a written complaint (also by fax) at GOTTWALD. Is there a concealed defect which appears later, it must be reported immediately after its discovery. The warranty rights of the commercial purchaser are omitted if he or she does not meet the obligations mentioned above.
- If there is a defect at the goods, GOTTWALD has the right and the choice for a supplementary performance in form of a removal of the defect (subsequent improvement) or a delivery of a new and free of defects item (replacement delivery). If the supplementary performance is unsuccessful, the customer has the right and the choice to demand withdrawal or reduction. The supplementary performance applies as failed after the second unsuccessful attempt. Claims for compensations referring to the following conditions because of the defect can only be asserted, if the supplementary performance has failed. The right of the customer for assertion of further claims for compensation referring to the following conditions remain unaffected.
In case of a defective operating / assembly manual, the warranty covers at first the delivery of a operating / assembly manual free of defects insofar a proper assembly / installation has not taken place. This does not apply if a further damage has occurred because of a defective operating / assembly manual.
- The warranty claims will be in lapse after one year from delivery of the goods. This does not apply if § 438 para. 1 no. 1 and 2 BGB (German Civil Code), § 479 para. 1 BGB or § 634a para. 1 no. 2 BGB regulates longer deadlines.
- The warranty liability of GOTTWALD is generally limited on the order value, in case of damage claims on the cover limit of a business liability insurance taken out by GOTTWALD.
- The limitations of the warranty mentioned above do not apply if you can accuse GOTTWALD of wilful intent or gross negligence including wilful intent and gross negligence of representative of GOTTWALD or their auxiliary persons or if a damage to life, body or health occurred or if you can accuse GOTTWALD of fraudulent intent or GOTTWALD grants a guarantee for the condition of the goods.
- If a customer is confronted with warranty claims because of goods purchased at GOTTWALD, his or her rights remain unaffected according to § 478 BGB (German Civil Code) insofar a warranty of GOTTWALD is owed according to the Bürgerlichen Gesetzbuch (German Civil Code).
- There is no warranty for damages which occur because of an inappropriate or incorrect usage, faulty assembly or putting into service by the purchaser or third parties, natural wear and tear, faulty or more negligent handling, unsuitable equipment, disregard of operating and maintenance manuals as well as incorrect changes or repair works by the purchaser or third parties.
- If the purchaser keeps on using the goods in spite of knowledge of a defect, we bear liability only for the original defect, but not for such damages which occur because of a continued usage.
- The assumption of a guarantee by GOTTWALD needs an explicit written declaration.
- If a manufacturer assumes a guarantee for the condition of the delivered goods or that the product keeps its quality for a particular duration, the purchaser has only the right of the guarantees mentioned in the guarantee statement and to the conditions mentioned in the relevant commercial towards the manufacturer regardless of legal claims.
- GOTTWALD bears liability unlimited according to the legal regulations for damages to life, body and health which are based on a negligent or intentional breach of duty of GOTTWALD, its legal representative or their auxiliary persons as well as for damages which are according to liability covered by the product liability law, and for damages which are based on a intentional or grossly negligent breach of contract as well as fraudulent intent by GOTTWALD, its legal representatives and their auxiliary persons. If GOTTWALD has given a condition guarantee and/or a durability guarantee referring to goods or parts, GOTTWALD bears liability in the scope of this guarantee. For damages which are based on lack of a guaranteed condition or duration, but which do not occur directly at the goods, GOTTWALD bears liability only then if the risk of such a damage is clearly evident with regard to the condition and duration guarantee.
- GOTTWALD bears also liability for damages which are caused by simple negligence insofar this negligence affects the violation of more essential contractual obligations or major obligation. But GOTTWALD bears only liability if the damages are connected to the contract in a typical way and predictable.
- A further liability of GOTTWALD is excluded without consideration on legal nature of the applying claim made; this also applies especially for tort claims or claims for replacement of fruitless expenditures instead of performance.
- If the liability of GOTTWALD is excluded or limited, this also applies for the personal liability of its employees, workers, members of staff, representatives and auxiliary persons.
- Generally, compensation claims of the customer will be in lapse after one year unless GOTTWALD bears liability according to clause XI.1.
XI. Tools and Devices
- Tools and devices which we order at our deliverers after a customer order and which we charge tooling costs for are property of the company or manufacturer. If it is not explicitly noted, charged tooling costs are only proportionate costs and do not give the right to hand over the tool or the device.
XII. Data Protection
- GOTTWALD informs you that we process and store all necessary data for business processing.
- The customer agrees to elevation, storage, usage, transfer and, if necessary, changes of his or her personalized data insofar they are important for the contract processing with GOTTWALD. Especially GOTTWALD has the right to gather information of third parties and to give them to third parties for the purpose of a credit assessment. Further on GOTTWALD has the right to instruct third parties with the delivery of the ordered goods and in case of default to instruct them with the collection of claims and to pass on the necessary data for this purpose to the instructed persons or companies.
- The customer can revoke his or her agreement completely or partially any time with effect for the future or can demand the correction of his or her stored data at GOTTWALD. In this case GOTTWALD is committed to delete the personalized data immediately as soon as the contractual relationship has been concluded completely.
XIII. Place of Performance, Place of Jurisdiction, Applicable Law
- Changes of this contract needs a written form, this also applies for a renunciation of this formal requirement.
- Place of performance for all mutual rights and commitments and place of jurisdiction is only Bremen. But GOTTWALD has the right to sue the customer at his or her general place of jurisdiction, too.
- The law of the Federal Republic of Germany applies with exclusion of the UN purchase right, “United Nations Convention of Contracts for the International Sale of Goods” (CISG).
- If single regulations of this contract are not validate completely or partially or not possible to be carried out, the validity of the remaining regulations shall not be affected. The same applies if the contract has a loophole. In place of ineffective or unfeasible regulations or of filling of loopholes, an appropriate regulation shall apply which is close to what the contracting parties might have intended if it is legally possible, insofar this point had been considered at the time of signing of contract.
GOTTWALD GmbH + Co. KG, 28719 Bremen, Date: January 2014
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