(Status 27.10.2010)
1. Coverage
1.1 These General Terms and Conditions apply to all deliveries made by Göpfert Maschinen GmbH, D-97353 Wiesentheid, hereinafter referred to as the supplier.
1.2 Deviating terms and conditions are only binding if they were explicitly agreed in writing.
2. Conclusion of Contract and Scope of Supply
2.1 The contract is concluded by transmission of an order confirmation.
2.2 The scope and execution of the delivery is exclusively subject to the order confirmation. Materials and services not contained therein are charged separately. If the order confirmation is issued based on the purchaser's documents, the data contained therein is only binding if the order confirmation explicitly refers to it.
3. Payment Arrangement
3.1 Prices are charged in accordance with the price list valid at the time of the offer plus value-added tax.
3.2 The supplier reserves the right to make a pro-rata price adjustment if labour costs or material prices have changed between the time of the offer and the contractual delivery.
3.3 Prices are ex works without packaging, delivery and assembly/mounting. Deviating agreements are only binding if they are explicitly acknowledged in writing in the order confirmation.
3.4 Payments are due without deduction within 10 days of the invoice date.
3.5 The supplier reserves the right to claim an unlimited absolute bank guarantee at the amount of the agreed price upon initial request. If the guarantee is not given within a reasonable period of time, the supplier has the right to rescind the contract.
3.6 The purchaser may only set off claims that are undisputed or have been determined as legally valid.
4. Packaging, Delivery and Passing of Risk
4.1 The packaging is charged separately by the supplier and is not taken back with the exception of undamaged packing cases. If undamaged packing cases are sent back to the supplier at the purchaser's expenses within 14 days of delivery, 2/3 of the packaging costs for these will be credited.
4.2 Partial deliveries are permitted.
4.3 Delivery is made on the purchaser's expenses.
4.4 Delivery times stated by the supplier are non-binding. Delivery times are only binding if they were explicitly agreed as fixed delivery dates in the order confirmation.
If a fixed delivery date is not met, the purchaser has the right to rescind the contract after an appropriate deadline has been given. In the case of Acts of God or unforeseeable events (e.g. strikes) that the supplier is not responsible for, he has the right to deliver within an appropriate period of time after the abandonment of the event. In this case, the purchaser needs to be informed immediately.
The supplier is liable for a delayed fixed delivery date in cases of intent or acts of gross negligence in accordance with legal provisions. In other cases, liability is limited to 5 % of the delivery value. Further claims are excluded.
If the delivery is delayed due to circumstances arising from the purchaser's sphere, the supplier has the right to claim damages in the form of storage charges amounting to 0.5 % of the invoice amount for each month or part of a month after the arranged delivery date. The purchaser has the right to prove that the damage was less severe; the supplier has the right to prove that the damage was more severe.
4.5 Insurance of damages of any kind rests on the purchaser. The supplier insures the goods against transport damage at the purchaser's request and expenses.
4.6 The delivery is made at the purchaser's risk. The risk is passed to the purchaser as soon as the goods leave the supplier's works. If the despatch is delayed due to the purchaser's fault, the risk is passed to the purchaser as soon as the goods are ready for despatch.
5. Contractual Rights of Withdrawal
5.1 The purchaser is entitled to withdraw from the contract; but this right requires the supplier's prior consent.
5.2 If the supplier has become aware of the purchaser's financial deterioration after conclusion of the contract or if the purchaser is delayed in payment, the supplier has the right to withdraw from all contracts that have not been completely fulfilled. In this case, the supplier is entitled to generalised damage claims amounting to 20 % of the net value of the ordered but unpaid goods irrespective of other statutory claims. The purchaser may prove that the damage is less severe; the supplier may prove that the damage is more severe.
6. Warranty
6.1 Warranty is exclusively given for flawed design or defective assembly. The supplier is only liable for faults in the material if the faults in the material should have been detected by exercising professional and due care. Apart from that, warranty is not given for negligible deviance from the agreed quality or for negligibly impaired serviceability for the required or usual application.
6.2 If there is a fault as defined in 6.1, sentences 1 and 2, the obligation to disclose and to give notice of defects pursuant Article 377 German Commercial Code applies. The supplier has the right to choose between subsequent improvement and subsequent delivery. Subsequent improvement or delivery are at the supplier's expenses. If costs increase because the delivery was made to a location other than the agreed, the purchaser has to bear the additional costs. If the supplementary performance fails several times, the purchaser may rescind the contract or reduce the price.
6.3 The supplier is liable for damages caused intentionally or due to gross negligence, for concealment of damages, if a quality guarantee was given or in case of damage to life, body or health. For other damages, the supplier is only liable if a duty is neglected whose performance is required for the proper implementation of the contract and upon whose compliance the purchaser can rely (cardinal duties). In these cases, liability is limited to the typically foreseeable damage.
6.4 Warranty for used goods is excluded.
6.5 The warranty for faults as defined in 6.1 for new goods is 1 year starting from the passing of risk. Liability for damages as defined in 6.3, sentence 2 lapses 1 year after the damage and its cause have become known but after 3 years starting from the passing of risk at the latest.
7. Reservation of Ownership
7.1 Until receipt of all payments from the entire business relationship, the goods remain property of the supplier. During reservation of ownership, pledging and assignment as security are not permitted. Resale is only permitted to resellers in the ordinary course of their business and only when passing on the reservation of ownership (extended reservation of ownership). Claims from the resale or assignment as security are passed to the supplier already now.
I7.2 In the case of pledging, seizure or other ordinance or interference of third parties, the purchaser has to inform the supplier immediately in written form. He has to inform the garnisher about the reservation of ownership. The purchaser has to bear all costs arising from the cancellation of the pledge or seizure by a third party and the return of the property.
8. Property Rights
8.1 Copyright as well as ownership of drawings, illustrations, plans, models and other documents remain with the supplier. All of the abovementioned documents may not be made available to third parties without the supplier's explicit consent and have to be returned immediately if the offer in question does not result in an order.
8.2 The purchaser is obliged to respect all patent, design, model and trademark rights relating to the products produced or sold by the supplier.
8.3 The purchaser undertakes not to copy or commission the copying of the products produced or sold by the supplier, be it all or part of it, under any circumstances.
8.4 In the case of a breach of the supplier's property rights by the purchaser, the purchaser is liable for all damages arising from this.
9. Final Provisions
9.1 The contractual parties declare the application of German law for all legal dealings. German law also applies in cases of transnational legal dealings, ruling out CISG.
9.2 Place of fulfilment for all goods and services, particularly for delivery and payment, is Wiesentheid.
9.3 Kitzingen is declared to be place of jurisdiction for all disputes arising from the contractual relationship.
9.4 Should any of the above general terms and conditions be invalid, this shall not effect the other provisions. Instead of the invalid provision, statutory regulations apply.