General terms and conditions of Göpfert Maschinen GmbH
1.1 These general terms and conditions of business apply for all deliveries made by Göpfert Maschinen GmbH, D-97353 Wiesentheid, hereinafter referred to as the supplier.
1.2 Differing, conflicting or additional general terms and conditions of business of the ordering party are inherent to the contract only if the supplier has expressly consented to their validity in writing. This consent requirement applies in all cases, e.g. even if the supplier undertakes the delivery to the ordering party unconditionally in knowledge of its general business terms and conditions.
2. Contract conclusion and scope of the delivery
2.1 The contract takes effect with the sending of an order confirmation.
2.2 The scope and execution of the delivery should be exclusively in accordance with the order confirmation. Materials or performances which are not included are invoiced separately. If order confirmation is produced based on the ordering party's documents, the information included therein is binding only when the order confirmation makes express reference thereto.
3. Payment agreements
3.1 Prices are calculated according to the valid price lists at the time of the offer plus statutory V.A.T.
3.2 The supplier reserves the right to make proportionate price adjustments if wage costs or material costs change between the timing of the offer and the contractual delivery.
3.3 Prices are ex works, without packaging, delivery or installation/assembly. Other agreements are only binding if officially acknowledged expressly and in writing in the context of the order confirmation. The ordering party is responsible for the payment of charges, taxes and other public dues.
3.4 Payments shall be made within 10 days of the invoicing date without deduction. After this deadline, the ordering party shall be deemed to be in payment arrears. Interest on payments in arrears will be charged at 9 percentage points above the respective basic interest rate.
3.5 The supplier reserves the right to request, prior to delivery, an unlimited, joint and several bank guarantee at the first time of asking amounting to the agreed price. In the event of nonpayment of the guarantee within an appropriate period the supplier is entitled to withdrawal from the contract.
3.6 The ordering party may assert only such claims as are undisputed or legally established.
4. Packaging, delivery and transfer of risk
4.1 The packaging will be invoiced separately by the supplier and, with the exception of undamaged shipping crates, will not be taken back. If shipping crates are returned free to the supplier's premises within 14 days of the delivery, 2/3 of the relative packaging costs will be repaid.
4.2 Part deliveries are admissible.
4.3 Delivery shall be at the expense of the ordering party.
4.4 Delivery times given by the supplier are non-binding. Delivery dates are binding only if expressly agreed as binding fixed delivery dates in the context of the order confirmation. In the event of non-compliance with a fixed delivery date the ordering party is authorised to withdraw from the contract after an appropriate period of grace. In the case of force majeure or unforeseeable events (e.g. strike) for which the supplier is not responsible or if the ordering party delays or avoids negotiation of cooperation, the supplier is entitled to performance in a suitable period after the end of the event. In this case the ordering party must be notified immediately. The supplier is liable according to the statutory provisions in the event that a fixed deadline is missed by intent or gross negligence. In other cases liability is limited to 5 % of the value of the delivery. Any further claims are excluded. If the delivery is delayed due to circumstances for which the ordering party is to blame, the supplier is authorised to charge a warehousing fee of 0.5 % of the invoice amount for each month commenced after the notified delivery date in compensation.
The ordering party is entitled to prove lesser damages and the supplier is entitled to prove greater damages.
4.5 The insurance against claims of any type is the responsibility of the ordering party. The suppliers insure the goods on request and at the cost of the ordering party against damage in transit.
4.6 The delivery takes place at the risk of the ordering party. The risk passes to the ordering party as soon as the goods leave the supplier's factory. If the delivery is delayed for reasons for which the ordering party is responsible, the risk transfers to the ordering party at the point of readiness for dispatch.
5. Contract withdrawal rights
5.1 The ordering party is entitled to contractual withdrawal but its exercise requires the prior consent of the supplier.
5.2 If after contract conclusion the supplier receives knowledge of liquidation or payment arrears on the part of the ordering party the supplier is entitled to withdraw from any or all uncompleted contracts. In this case the supplier is entitled, irrespective of further statutory claims, to a fixed amount of compensation for lost profit of 20 % of the net sales value of goods ordered but unpaid for. The ordering party is entitled to prove lesser, the supplier to prove greater damage.
6.1 A warranty is given exclusively for defective design or defective execution. The supplier is liable for material damage only inasmuch as an expert would be bound to notice the material defect. The warranty does not apply to instances of minor deviation from the agreed quality or minor effect on the usability for the planned or normal purpose.
6.2 In the event of a defect in the sense of art. 6.1 clauses 1 and 2 the notification and complaint duties of the § 377 HGB apply. The supplier has the choice between repair or replacement. The supplier must pay the costs of repair or replacement unless the demand of the ordering party for the remedy of defects is found to be unreasonable. If the costs increase because delivery is made to a destination other than that agreed, the additional costs must be paid by the ordering party. If the subsequent performance is unsuccessful, the ordering party may withdraw from the contract or demand a price reduction.
6.3 The supplier is liable for damage caused by intent or gross negligence, for fraudulent material concealment of defects, for any accepted guarantee of quality as well as for injury to life, limb or health. The supplier is liable for other damage only if a duty has been neglected whose fulfilment is fundamental to the implementation of the contract and on whose compliance the ordering party may regularly rely (cardinal duties). In these cases liability is limited to the typically foreseeable damage.
6.4 The supplier shall not accept liability for machinery which has been purchased by the ordering party from a third party and connected to the machinery supplied by the supplier. The supplier shall not guarantee defect-free software connections between the machine supplied by the supplier and the third party machine purchased by the ordering party. The supplier is not liable for any breakdowns or defects resulting from said connecting of a third party machine purchased by the ordering party to the machine supplied by the supplier. This exemption from liability does not apply to damage caused by gross negligence on the part of the supplier or to gross negligence on the part of a legal representative or vicarious agent of the supplier.
6.5 There is no warranty on used items.
6.6 The warranty period for defects in the sense of art. 6.1 on new goods is 1 year from the transfer of risk. Liability for claims in the sense of art. 6.3 clause 2 expires 1 year from knowledge of damaging party and damage, and no more than 3 years from the transfer of risk.
7. Retention of title
7.1 The goods remain the property of the supplier until the receipt of all payments from the overall business relationship. Any pledging or transfer by way of security is prohibited during retention of title. Resale in the course of normal trade is permitted subject to transfer of the retention of title (extended retention of title). Claims from resale or transfer by way of security will at this point already have been ceded to the supplier.
7.2 In the case of pledges, seizures or other injunctions or third party interventions shall be disclosed by the ordering party to the supplier immediately in writing. The supplier shall notify the attaching creditor of the retention of title. The ordering party must pay all costs for the lifting of the pledge and/or of the third party intervention and for repurchase of the title.
8.1 The copyright and the title to drawings, figures, plans, models and other materials remain with the supplier. The aforementioned materials may not be disclosed to third parties without the express approval of the supplier and must be returned immediately if the offer in question does not lead to an order.
8.2 The ordering party undertakes to respect all extant patents, samples, models and trademark rights on the products manufactured or distributed by the supplier.
8.3 The ordering party is permitted under no circumstances to partly or wholly modify or have modified the products manufactured or distributed by the supplier.
8.4 In the event of infringement by the ordering party of the supplier's copyright, the ordering party shall repay all damages incurred.
9. Final conditions
9.1 The contract partners agree to the application of German law with respect to all legal relationships. German Law also applies for cross-border negotiations to the exclusion of the UN-Sales Convention.
9.2 The place of fulfilment for all performances, particularly delivery and payment, is Wiesentheid.
9.3 The agreed place of jurisdiction for all disputes from the contract relationship is Kitzingen.
9.4 Should any provision of this contract be unworkable, this shall not affect the workability of the remaining provisions. The unworkable provision shall be replaced by legal provisions.