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Delivery terms and conditions at Gmöhling Transportgeräte GmbH, Fürth

I. Scope of validity

The following terms and conditions shall apply to the scope of all deliveries and services. The customer’s general terms and conditions shall apply only insofar as they are expressly agreed to in writing. These terms shall apply to all business transactions with the customer, even if they are no longer mentioned explicitly for later contracts. This shall also apply if the customer refers to their own terms and conditions for later orders, insofar as we have not expressly agreed to these.

II. Quotations

Our quotations are subject to change, unless they are expressly indicated as binding.

III. Scope of delivery and services

1. The scope of deliveries and services shall be based on our written confirmation of order.

2 We reserve the unlimited proprietary rights, copyrights and exploitation rights for quotes, diagrams and other documents; they may only be made accessible to third parties following our prior agreement. Diagrams and other documents pertaining to quotations are to be immediately returned to us on our request or if an order is not made.

IV. Prices

1. Our prices shall apply to deliveries from the factory in accordance with INCOTERMS 2010 and in EUROS, if not otherwise expressly agreed.

2. Prices in our quotations are subject to changing material and labour costs.

V. Payment terms

1. Payments are to be made cost-free to our paying office, unless otherwise agreed in writing.

2. The customer may only deduct debits if they are mutually agreed or have been established in law.

VI. Retention of title

1. The supplied goods shall remain our property until all claims due to us against the customer from the business relationship have been fulfilled. Insofar as the value of all of our security interests exceeds the value of all secured claims by more than 10%, we will share a corresponding proportion of the security interests on the buyer’s request.

2. The customer is revocably allowed to resell the delivered products at any time within the scope of his proper business activities. The customer hereby assigns to us all claims that arise from the resale and from the business relations with his customer in connection with the receivables from the resale.

VII. Delivery times, carrying costs and delayed delivery

1. The delivery time shall begin with the acceptance of the order by the supplier and following complete clarification of any technical matters. The delivery time shall be considered observed if, by its expiration, the delivery has left the factory or the customer has been informed of its readiness for despatch.

2. The delivery time shall be suitably extended

- if the details required to carry out the order are not received by the supplier in good time, or if these are amended later by the customer;

- if payment deadlines are not observed

- if obstacles occur which cannot be overcome by the supplier despite taking the required care, regardless of whether these occur for the supplier, the customer or a third party. Such obstacles include incidents of force majeure, such as epidemics, mobilisation, war, riots, significant operational disturbances, accidents, industrial action, delayed or incorrect delivery of the necessary raw materials, half-finished or finished goods, proved rejection of important components, official measures or omissions, natural events.

3. If despatch is delayed on the customer’s request, the supplier reserves the right to charge the customer any costs incurred by the storage of the delivery, although this shall be at least ?the sum of the invoice amount. The obligation to bear delivery costs shall begin one month after notification of the readiness for despatch.

4. The customer shall be entitled to claim compensation for late deliveries which are not delayed by circumstances referred to para. 2. The customer can claim compensation insofar as the supplier was verifiably responsible for a delay and the customer can prove loss or damage as a result of this delay. If the customer is accommodated with a replacement delivery, his claim to compensation shall not apply.

5. Compensation for delayed orders amounts to a maximum of ?% for every full week of the delay, although no more than 5%, calculated based on the contractual price of the delayed part of the delivery. The first two weeks of the delay give no claim to compensation. 6. In the event of delayed deliveries or services, the customer has no right or claim other than those expressly indicated in para. 4 and 5.

VIII. Passing of risk

1. The risk shall pass to the customer from the factory in accordance with INCOTERMS 2010. This shall also apply to partial deliveries or deliveries in a disassembled state.

2. Despatch shall take place at the customer’s expense and risk. Insofar as the customer commissions us with the shipping of the goods, we shall choose the method and route of delivery according to our best estimates. The goods shall be insured by us against breakage and transport damage on the request and at the expense of the customer.

3. The customer is obliged, before issuing to the carrier confirmation of the receipt of the delivered goods, to unpack the delivered goods from their despatch packaging and visibly inspect them for damage, particularly transport damage.

IX. Acceptance

1. Delivered items are to be accepted by the customer, even if they display minor defects.

2. Partial deliveries are permissible within the scope of ?281section 1 clause 2 of the German Civil Code [BGB].

X. Liability for defects

We are liable for defects as follows:

1. All such parts are to be repaired or replaced free of charge, at our choice, within a suitable timescale specified to us by the buyer insofar as these parts become unusable or their usability is significantly impaired within 12 months following the passing of risk as a result of a factor present prior to the passing of risk, in particular due to faulty construction, poor materials or defective design. The ascertainment of such defects must be reported to us immediately in writing.

2. If we allow a reasonable period of grace to elapse without rectifying the defect, the customer may request the termination of the contract or a decrease in payment as well as compensation.

3. In all cases of delivery of goods that are not used for construction in accordance with their standard means of use, the customer’s right to assert claims for defects shall expire 12 months from the moment of delivery of the goods.

4. The defectiveness shall not relate to natural wear and tear, and not to damage caused following the passing of risk due to improper or negligent handling, excessive loading and such influences that are not specified in accordance with the contract.

5. Warranty for repairs and replacement deliveries amounts to 3 months. It shall extend at least until expiration of the original warranty for the delivered item.

XI. Other compensation claims

We are not liable for damage which does not occur to the deliverable itself, only a) in the event of culpable personal injury, bodily harm or damage to health; b) for personal injury and property damage to privately used items, insofar as this is due to a defect to goods supplied by us, within the scope of the German Product Liability Act; c) for deliberately concealed defects and any defects that we failed to ensure were not present; d) in the case of intent; e) in the event of the gross negligence of our owners as well as our elements and managerial staff; in the event of a culpable breach of major contractual obligations, we shall also be liable for gross negligence by non-managerial staff and for minor negligence, in the latter case, however, this shall be limited to damage that could reasonably have been anticipated and which is typical for the contract.

Further claims for compensation are excluded.

XII. Compliance regulations in accordance with ?4 of the German Foreign Trade Act [Außenwirtschaftsgesetz AWG]

The customer is obliged to not transfer or resell goods acquired via us to persons or countries that are directly or indirectly covered or affected by ?34 of the German Foreign Trade Act [AWG].

XIII. Place of jurisdiction

If the customer is a registered trader, the sole place of jurisdiction shall be the location of our office in Fürth for all disagreements that result directly or indirectly from the contractual relationship.

XIV. Substantive law

German law shall apply to the contractual relationship. The application of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.

XV. Final provisions

The contract shall retain its binding effect even if individual provisions or terms should become legally invalid.

Purchasing terms and conditions at Gmöhling Transportgeräte GmbH

(Valid from August 2009)

 

1. General information - Scope of validity

1.1. Our purchasing terms and conditions shall apply for all business transactions with suppliers or other contractors. In particular, we do not recognise the supplier’s conflicting terms and conditions or those that deviate from our purchasing terms and conditions, unless we have expressly agreed to their validity in writing. The present purchasing terms and conditions shall also apply for all future contractual relationships with the relevant supplier, even if they have not been explicitly agreed again with every business transaction. Our purchasing terms and conditions shall also apply if we accept a delivery or service from the supplier without reservation or make payments while aware of the supplier’s conflicting terms and conditions or those that deviate from our purchasing terms and conditions.

1.2. All agreements made between ourselves and the supplier for business purposes shall require the written form or a written confirmation from us in order to be effective.

 

2. Quotation – Order – Documentation

2.1. Quotations from the supplier shall be free and without obligation for us.

2.2. It is mandatory that our orders are confirmed by the supplier immediately once received. If the supplier does not accept the order within one week from receipt, we shall be entitled to cancel our order. Every fulfilment action by the supplier with regard to an order shall represent the acceptance of the order. Any deviation of the order acceptance from the order requires our written confirmation.

2.3. Only the written order or the written confirmation of a verbal or telephone order by us shall be binding. The obligation to use the written form shall be deemed sufficiently met if documents are sent by fax or email.

2.4. Every order shall be handled separately in the correspondence. The supplier shall indicate our order number on all documents relating to an order.

2.5. We shall retain the title to and copyright on diagrams, drawings, calculations and other documents. They may not be made accessible to third parties without our express written consent. They shall be exclusively used for production relating to our order and returned to us on request by the end of the business relationship at the latest. They must not be disclosed to third parties.

 

3. Prices - Payment

3.1. The price stated in the order shall be binding. In the absence of any written agreement to the contrary, the price shall include delivery to our door including packaging, transport insurance and other incidental expenses.

3.2. The legally applicable VAT shall not be included in the price unless sales tax is shown.

3.3. We are only able to process invoices if these - corresponding to the specifications in our order - state the order and parts numbers indicated, the shipping date and our description of goods, insofar as they are known to the supplier. Invoices must correspond to the legal requirements and be auditable. The supplier shall be responsible for all consequences resulting from the nonobservance of this obligation, insofar as he does not prove that he is not responsible.

3.4. Payment shall take place as agreed, otherwise less 3% prompt payment discount within 10 days or strictly net within 30 days. Defect-free and complete delivery and observance of adequate invoicing in accordance with section (3) are assumed. In the event of the acceptance of deliveries ahead of schedule, the invoice shall become payable as of the agreed delivery date.

3.5. We shall be entitled to rights of compensation and retention to the extent of the law.

3.6. Payments made do not represent recognition of a delivery in accordance with the contract or as the surrendering of any claims against the supplier. They shall always take place with the reservation that monies may be reclaimed, insofar as we are entitled to such a claim at the time of payment or obtain this entitlement at a later time.

 

4. Delivery time

4.1. The delivery time stated in the order is binding. The observance of the delivery time shall be determined by the receipt of the goods at the place of fulfilment or, where self-collection has been agreed, notification of readiness. We are not obliged to accept deliveries before the delivery deadline/period elapses. We are not obliged to accept deliveries of parts or additional deliveries to which we have not agreed.

4.2. The supplier shall undertake to inform us immediately in writing if circumstances occur or become evident to the supplier that indicate that the agreed delivery time cannot be kept.

4.3. In the event of delayed delivery, late delivery or (partial) impossibility, we shall be entitled to make our legal claims. In particular, we are entitled to request compensation for damage instead of the service and cancellation of sale once the agreed deadline has elapsed without success, insofar as this is not unnecessary in accordance with the legal regulations. If we request compensation for damage, the supplier has the right to demonstrate that he is not responsible for the breach of duty.

4.4. .

 

4.5. If delivery takes place earlier than agreed, we reserve the right to return the delivery at the expense of the supplier. If a delivery made ahead of schedule is not returned, the goods shall be stored until the agreed delivery date at the expense and risk of the supplier.

 

5. Force majeure and industrial action

  Force majeure, strikes and lockouts in labour disputes, official measures or other unforeseeable, unpreventable events shall free us from all purchase commitments and any claims for compensation for the duration of the disturbance and in the scope of their effect.

 

6. Delivery – Passing of risk

6.1. Insofar as no other written agreements have been made, delivery shall take place to the place of fulfilment specified in our order free from freight, packaging and other additional expenses.

6.2. Risk shall be passed to us only once the goods are accepted by us at the agreed place of fulfilment.

6.3. If the freight is to be borne by us as an exception, the mode of transport specified by us is to be chosen, otherwise the mode of transport and delivery that is cheapest for us should be chosen.

6.4. If, notwithstanding § 3 of these specifications, the packaging costs are to be borne by us, the packaging is to be calculated at cost price. The supplier must ensure that the packaging adequately protects the goods against damage during transit. This shall also apply in the event that we stipulate the packaging.

6.5. The supplier is obliged to specify precisely our order and parts numbers as well as the quantity and weight of the delivered goods. All goods containers or packing units are to be labelled with a packing slip/a card accompanying parts which details the respective content by stating the quantity/weight and our goods descriptions and parts numbers. Should he not do this, we shall not be responsible for delays in processing.

 

7. Examination of defects - Liability for defects

7.1. The supplier shall ensure that the goods supplied correspond to the samples, patterns and descriptions supplied by him. The goods to be delivered must be made from a material that is fit for purpose and defect-free, which features the agreed or standard properties and corresponds to both our specifications and the legal regulations or recognised professional regulations. The statements made by the supplier in contractual discussions, in catalogues, advertising documents, public statements, data sheets and other product descriptions shall apply as the agreed quality features of the goods. Deviations from these represent a defect which is to be rectified by the supplier.

7.2. We shall be entitled to the legal claims for defects in full; we are entitled in every case to request that the supplier either rectifies defects or delivers a new item, as we choose. Any expenses incurred by us through this, such as transport, travel, work and material costs or costs for an incoming goods inspection that exceeds the standard scope of inspection, shall be borne by the supplier. In particular, we may also request compensation for expenses that we must bear in our relationship with our clients. The right to compensation for damages, in particular the right to compensation for damages instead of the service, remains expressly reserved.

7.3. In the event of defects to be borne by the supplier, we shall be entitled to repair the defects ourselves at the supplier’s cost if there is imminent danger or there is particular need for haste or the supplier has allowed a deadline set for him to remedy defects to elapse to no avail.

7.4. The legal statutory periods of limitation shall apply, although at least 24 months, unless otherwise expressly agreed. The statute of limitations begins once again if the supplier provides supplementary performance or recognises the claims for defects, regardless of the form.

7.5. The supplier shall also be responsible for defects in title beyond his control. We are entitled to claim compensation. The statute of limitations for our claims for defects shall amount to 10 years from delivery in the case of defects in title.

 

8. Quality assurance - Material selection

8.1. The supplier shall ensure using a suitable quality management system that his deliveries correspond to the recognised rules of technology, observe the relevant norms, regulations and standards and are free from material defects.

8.2. If initial sampling is to be provided, mass production may only begin following written approval of the sample.

 

9. Product liability

9.1. The supplier shall be obliged to indemnify us on first demand against any claims for compensation by third parties insofar as the cause lies within the supplier’s sphere of authority and organisation. This shall apply in particular to claims from producer liability or product liability claims that are due to the defectiveness of the goods from the supplier or his subcontractor.

 

10. Retention of title – Supply – Tools – Confidentiality

10.1. If we provide parts to the supplier, we shall retain proprietorship of them. Processing or alterations by the supplier shall be undertaken for us. If our conditional goods are processed with items not belonging to us, we shall acquire joint ownership of the new item in relation to the value of our item (purchase price plus VAT) to the other processed items at the time of processing. This shall also apply to containers and packaging materials supplied by us.

10.2. We retain ownership of tools paid for by us. The supplier is obliged to exclusively use the tools for the production of goods ordered by us. The supplier is obliged to insure tools belonging to us against fire, water and theft damage at the replacement value at his own expense. The supplier is obliged to undertake any necessary maintenance and inspection work on our tools as well as all work to repair the tools in good time and at his own expense. He must inform us immediately of any incidents. If he culpably fails to do so, he shall be liable for any damage incurred.

10.3. The supplier’s reservation of title for the goods supplied by him shall only be binding if it has been agreed in writing.

10.4. The supplier is obliged to treat as strictly confidential all diagrams, drawings, calculations and other documents and information obtained. Third parties may only be granted access to them with our express permission. The confidentiality obligation shall also apply following termination of this contract.

 

11. Place of fulfilment, place of jurisdiction and applicable law

11.1. The place of fulfilment shall be the site of our company head office.

11.2. The place of jurisdiction for all legal disputes arising from this contractual relationship and in relation to its existence and effectiveness shall be the court responsible for our company headquarters.

11.3. German law shall apply (German Civil Code [BGB] and German Commercial Code [HGB])

 

12. Severability Clause

12.1. Should individual provisions in these terms and conditions become invalid, regardless of the reason for this, the remaining provisions shall retain their full validity. The invalid or unenforceable provision shall be replaced with a valid and enforceable provision that comes closest to the legal and economic objective pursued by the invalid or unenforceable provision.

GMÖHLING Transportgeräte GmbH
Stadelner Hauptstr. 34 • D-90765 Fürth • Tel.: +49 911 - 7669-0 • info@gmoehling.com