General Terms and Conditions of
GRAETZ Strahlungsmeßtechnik GmbH
General Conditions of Sale and Delivery (GSC)
§ 1 Area of application
1.1 These General Sales and Delivery Conditions (GSC) apply to all business transactions between the GRAETZ Strahlungsmeßtechnik GmbH (hereinafter referred to as “Seller/Contractor”) and its customers (hereinafter referred to as “Buyer/Client”), if they are entrepreneurs (§ 14 BGB), a legal entity under public law or a special fund under public law. They shall also apply if they are not mentioned in later contracts. They also apply to all online business transactions between the buyer and the seller in e-commerce via the seller’s online store. Furthermore, the GSC apply to contracts for work and services. For all service, maintenance, and repair services of the GRAETZ Strahlungsmeßtechnik GmbH and the customer, the special service, maintenance, and repair conditions in §§ 18 to 23 of these GSC are especially relevant.
1.2 These GSC apply exclusively. Conflicting, additional or deviating terms and conditions of the Buyer/Client shall not become part of the contract unless the Seller has expressly agreed to their validity.
1.3 These GSC shall also apply if the Seller/Contractor is aware of conflicting or deviating terms and conditions and carries out the delivery without reservation or does not add these GSC to future transactions in individual cases.
1.4 Individual agreements made in individual cases shall in any case take precedence over these GSC. Oral declarations made before or at the time of conclusion of the contract are only binding if they are confirmed in writing.
1.5 Rights to which the Seller/Contractor is entitled according to the applicable mandatory legal provisions beyond these GSC remain unaffected.
1.6 Contract language is German. The German version of the GSC shall prevail in case of questions of interpretation and disputes.
§ 2 Offer and conclusion of contract
2.1 Offers of the Seller are subject to change and non-binding, unless they are expressly designated as a binding offer. They only represent an invitation to the Buyer to submit a corresponding offer to the Seller by placing an order. All information on the goods in catalogs and brochures, the presentation of goods on the website and in the online store of the seller, in e-commerce and other advertising media, as well as information on the fulfilment of legal requirements, are intended to provide an overview of the goods and are not subject matter of the contract unless this is expressly agreed.
2.2 Orders of the Buyer contain binding offers. The Seller can accept orders within 14 days of receipt. Orders are accepted by means of a separate order confirmation from the Seller or the delivery of the ordered goods or the issuing of an invoice.
2.3 If the Buyer orders via the online store of the Seller in e-commerce, the Buyer will immediately confirm the receipt of the order electronically. The letter of confirmation does not yet constitute acceptance of the contract.
2.4 The time of the conclusion of the contract is determined by the receipt of the order confirmation of the Seller by the Buyer or, in case of immediate execution of the order, by the delivery of the ordered goods to the Buyer. Should there be no order confirmation in individual cases or the contract be concluded without order confirmation, the information in the offer and then in the Seller’s invoice shall be decisive for the content of the contract.
2.5 If the Buyer has any objections to the contents of the order confirmation or the goods sent, he must object to this without delay. Otherwise the contract is concluded according to the terms and content of the order confirmation.
2.6 The Seller is entitled to withdraw from the contract if the buyer provides incorrect information about his creditworthiness, if the Buyer has stopped payments or if an application has been made to open insolvency proceedings on his assets and if the Buyer does not make the payments owed within one week after another request for payment.
2.7 Conclusion and performance of the contract shall be subject to the proviso that no hindrances based on German, US-American or other applicable national, EU or international regulations of foreign trade law or embargoes or sanctions stand in the way. The customer is responsible for compliance with the export control regulations. In particular, he is obliged to provide all information and documents and to obtain permits, licenses, approvals and releases at his own expense which are required for the export, transfer or import of the products. The refusal of an export approval does not entitle the buyer to withdraw from the contract or to claim damages.
§ 3 Changes, product description
3.1 Customary or insignificant changes to the quality and quantity of the goods shall be granted by the Buyer in the case of serial production as well as special production. This applies in particular to color or viscosity deviations. Raw material and auxiliary material tolerances specified by the Seller as well as unavoidable deviations due to manufacturing technology shall not constitute a reason for complaints on the part of the Buyer, provided that the usability of the goods for the contractually agreed purpose is not impaired.
3.2 If the contract relates to goods which are subject to technical development, the Seller shall be entitled to deliver the goods in accordance with the latest development status or manufacturer’s data sheet, provided that the usability for the contractually agreed purpose is not impaired. Deviations due to legal regulations are also permissible, provided they do not impair the usability for the contractually agreed purpose. The Buyer is obliged to point out to the Seller if his interest is limited exclusively to the type ordered and in no case may deviations from this type be made.
3.3 The Seller’s safety data sheets or technical data sheets and other manufacturer’s data sheets describe the goods. They are not to be considered as assurance of a specific property or guarantee. A warranty or guarantee is only to be accepted if the Seller expressly declares it in writing.
3.4 Information about the goods distributed by the Seller (e.g. weights, dimensions, load-bearing capacity, tolerances and technical data) as well as representations thereof (e.g. drawings and illustrations), in particular in brochures, catalogs, advertising material and other documents as well as on the Seller’s website and in the Seller’s online store are only approximate unless the quality and usability for a specific purpose is contractually agreed and do not constitute a guarantee of quality or durability by the Seller.
§ 4 Prices and price adjustment
4.1 Unless otherwise agreed, the prices stated in the Seller’s order confirmation are in Euro. The prices shall apply ex works of the Seller and only for the scope of services and delivery specified in the order confirmation. Not included are in particular costs for packaging, freight, insurance, customs, public charges and value added tax.
4.2 The statutory value added tax shall be shown separately in the invoice at the rate applicable on the date of invoicing. In the case of export deliveries, this also applies to any customs duties and other public charges.
4.3 If, between the conclusion of the contract and the delivery of the ordered goods, cost increases occur which are not justifiable by the Seller and which were unforeseeable at the time of the conclusion of the contract, in particular due to changes in market prices, material and raw material prices, which mean that the Seller can only obtain the goods from his supplier under worse economic conditions, than was foreseeable at the time of the conclusion of the contract with the Buyer, the Seller shall be entitled to adjust the prices agreed with the Buyer within the scope of the changed circumstances and without calculating an additional profit if the goods are to be delivered more than three months after conclusion of the contract. If the increase in the purchase price agreed with the Buyer amounts to more than 15%, the Buyer may withdraw from the concluded contract.
4.4 The Seller is entitled to execute or render outstanding deliveries or services only against prepayment or provision of security if, after conclusion of the contract, he becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Buyer and which jeopardize the payment of outstanding receivables. This shall apply accordingly if the Buyer refuses or fails to pay outstanding claims of the Seller and if there are no undisputed or legally established objections to the Seller’s claims.
§ 5 Terms of payment
5.1 Unless otherwise agreed in writing, invoices of the Seller shall be paid without any deduction for new equipment within 30 days, for service, maintenance, calibration, repair work (including spare parts and components) as well as training within 10 days from the date of invoice to the Seller’s account stated on the invoice. The deduction of a discount is not permitted.
5.2 Unless otherwise agreed in writing, invoices of the Seller to new customers and to customers from abroad, after issuance of a pro-forma invoice by the Seller, are to be paid immediately by the Buyer in advance without any deduction. The goods will be delivered only after confirmed receipt of payment.
5.3 If the Buyer defaults on a due payment, the seller shall be entitled to charge interest from the due date at a rate of 9 percentage points above the respective base interest rate plus a lump-sum default charge of EUR 40.00, reasonable collection costs and attorney’s fees for each invoice and to declare all outstanding invoice orders immediately due for payment. We reserve the right to assert higher damages caused by delay.
5.4 The Seller is entitled to set off payments made by the Buyer against his oldest debt first. If costs and interest have been incurred, the seller is entitled to offset the payment against the costs, then against the interest and finally against the principal claim.
5.5 If the Buyer does not accept purchased goods after expiry of a grace period granted to him (default of acceptance), the due date of the purchase price shall be the date of the declaration of readiness for dispatch. At the same time, the seller can demand a lump sum for storage costs from the time of default of acceptance. This shall amount to 0.5% of the net order value per week or part thereof of the delay in acceptance without the need for special proof and shall be limited to 5% of the net order value. The Buyer and the Seller shall be at liberty to prove that no, lower or higher storage costs were incurred in connection with the non-acceptance of goods. Other claims shall remain unaffected.
§ 6 Set-off, retention, assignment
6.1 Counterclaims of the Buyer only entitle him to offset and to assert a right of retention if they have been legally established or are undisputed. This does not apply to a counterclaim due to a defect which is based on the same contractual relationship as the purchase price claim.
6.2 The assignment of any claims of the Buyer against the seller from the contractual relationship requires the written consent of the Seller to be effective. The seller will refuse his consent only for justified reasons.
§ 7 Delivery, delivery and performance time and partial deliveries
7.1 Unless otherwise agreed, deliveries shall be ex works of the seller (EXW Incoterms® 2020).
7.2 Delivery periods and delivery dates stated by the Seller are approximate, non-binding periods and dates. The Seller is not liable for delays in delivery. Delivery periods and dates are only binding for the Seller if he has expressly designated or confirmed them as binding in writing. Unless otherwise agreed, deliveries shall be deemed to have been made by the Seller in due time if the goods are handed over to the Buyer for transport at the place of business of the manufacturer or at the place of business or warehouse of the Seller by a transport person or if the Seller has notified the Buyer that the goods are ready for dispatch after the Buyer has delayed acceptance.
7.3 If a specific delivery period has not been expressly promised in writing by the Seller, the delivery will take place at the request of the Buyer at the earliest two weeks after conclusion of the contract.
7.4 Agreed delivery periods shall not commence before the Buyer has provided all documents, approvals and releases to be procured by him, clarified all questions and received an agreed down payment. Compliance with the delivery period or delivery date presupposes the timely and proper fulfillment of these and all other obligations of the Buyer. Compliance with agreed delivery periods and dates is subject to timely and proper delivery to the Seller. The same applies to performance periods and delivery dates.
7.5 If the Seller does not receive deliveries or services from manufacturers, suppliers or subcontractors for reasons for which he is not responsible, despite proper congruent procurement, or does not receive them correctly or on time, or if events of force majeure occur, i.e. obstacles to performance with a duration of more than four weeks through no fault of his own, the Seller shall inform the Buyer in writing in good time. In this case, the Seller is entitled to postpone the delivery or service for the duration of the hindrance or to withdraw from the contract in whole or in part due to the unfulfilled part of the contract, the latter insofar as the Seller has fulfilled its aforementioned duty to inform and the hindrance to performance lasts for more than 2 months. Force majeure shall be deemed to include strikes or lock-outs, including at suppliers, interventions by public authorities, shortages of energy and raw materials, transport bottlenecks for which the Seller is not responsible, operational hindrances for which the Seller is not responsible due to fire, water and equipment damage, cyber-attacks, epidemics or pandemics and all other hindrances which, from an objective point of view, have not been culpably caused by the Seller.
7.6 If a delivery or service date or a delivery or service period has been bindingly agreed and if this period or this date is exceeded by more than two months due to events in accordance with the above section 7.5 and if the Buyer cannot reasonably be expected to accept the delivery or service as a result of the delay, the Buyer can withdraw from the unfulfilled part of the contract with respect to the Seller after the fruitless expiry of a reasonable grace period with the threat of rejection. The occurrence of the delay in delivery shall be determined in accordance with the statutory provisions.
7.7 Partial deliveries are permissible if the partial delivery can be used by the Buyer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the buyer does not incur any considerable additional work or additional costs as a result.
7.8 Blanket orders, in which the Buyer orders a certain quantity of goods to be delivered in several partial deliveries over a certain period of time, are only possible with a separate agreement and fixed dates for the individual deliveries. Unless otherwise agreed, the blanket order may not exceed a term of six months. In the case of blanket orders, the call for the individual deliveries must be made by the buyer at least 6 weeks before the desired delivery date.
7.9 In the event of a delay for which he is responsible, the Seller shall only be liable up to a maximum amount of 10% of the order value in relation to the part of the order affected by the delay. The liability for intent and gross negligence according to section 13.1 remains unaffected.
7.10 If the delivery is made with loaned packaging, such as Euro pallets or skeleton containers, these are to be returned by the Buyer free of charge in exchange via the carrier. All other packaging materials are disposable packaging, which is not to be returned to the seller and is to be disposed of by the Buyer himself.
§ 8 Transfer of risk and shipment
8.1 The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover of the goods to the forwarding agent, carrier or other person designated to carry out the shipment to the Buyer. The Seller has thus fulfilled his delivery obligation. This also applies if partial deliveries are made or a freight or cost-free shipment is agreed for the buyer or the seller selects the type of shipment, shipping route or shipping person. The seller will insure the goods at the request and expense of the Buyer by a transport insurance against the risks to be specified by the Buyer.
8.2 If the handover or shipment is delayed due to circumstances for which the Buyer is responsible, the risk shall pass to the Buyer on the day on which the goods are ready for shipment and the Seller has notified the Buyer thereof.
8.3 If the Seller selects the mode of shipment, the shipping route and/or the shipping person, the Seller shall only be liable for intent or gross negligence in the selection.
8.4 If the Buyer returns the goods, he bears the risk of damage and accidental loss.
§ 9 Retention of title
9.1 The delivered goods remain the property of the Seller until full payment of all claims against the Buyer to which the Seller is entitled under the business relationship. The Buyer is obliged to treat the goods subject to retention of title with care for the duration of the retention of title. In particular, he is obligated to insure them at his own expense against fire, water and theft at replacement value. The Buyer hereby assigns to the Seller all compensation claims arising from this insurance. The Seller hereby accepts the assignment. If an assignment should not be permissible, the Buyer hereby irrevocably instructs his insurer to make any payments only to the Seller. Any further claims of the Seller shall remain unaffected. The Buyer shall provide the Seller with proof of the insurance policy on request. If maintenance and inspection work has to be carried out, the Buyer shall carry this out in good time at its own expense.
9.2 The Buyer shall not be entitled to pledge the goods subject to retention of title, to transfer ownership by way of security or to make any other dispositions that endanger the Seller’s property. In the event of seizure or other interventions by third parties, the Buyer shall immediately notify the Seller in writing and provide all necessary information, inform the
third party of the Seller’s ownership rights and cooperate in the Seller’s measures to protect the goods subject to retention of title. The Buyer shall bear all costs for which he is responsible which are necessary to remove the seizure and to replace the goods.
9.3 The Buyer hereby assigns to the Seller the claims arising from the resale of the goods with all ancillary rights, irrespective of whether the goods subject to retention of title are resold without or after processing. The Seller accepts this assignment already now. If an assignment is not permitted, the Buyer hereby irrevocably instructs the third-party debtor to make any payments only to the Seller. The Buyer is revocably authorized to collect the claims assigned to the Seller in trust for the Seller. The collected amounts are to be transferred to the Seller immediately. The Seller may revoke the Buyer’s authorization to collect and the Buyer’s authorization to resell the goods if the Buyer does not properly meet his payment obligations to the Seller, defaults on payment, ceases payments or if an application is made to open insolvency proceedings against the Buyer’s assets. With the notification of the assignment to the third party debtor the authority of the Buyer to collect expires. In the event of revocation of the right to collect, the Seller may demand that the Buyer disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and notify the debtors of the assignment.
9.4 In the event of default of payment by the buyer, the seller is entitled to withdraw from the contract without prejudice to his other rights. The Buyer shall grant the Seller or a third party commissioned by the Seller immediate access to the goods subject to retention of title, hand them over and inform the Seller of their location. After a correspondingly timely warning, the Seller may otherwise utilize the goods subject to retention of title to satisfy his due claims against the Buyer.
9.5 The Seller is obliged to release the securities to which he is entitled upon request of the Buyer to the extent that the realizable value of the securities, taking into account customary bank valuation discounts, exceeds the Seller’s claims arising from the business relationship with the Buyer by more than 20%. The valuation shall be based on the invoice value of the goods subject to retention of title and the nominal value in the case of claims.
9.6 In the case of deliveries of goods to other jurisdictions in which the reservation of title under sections 9.1 – 9.5 does not have the same security effect as in the Federal Republic of Germany, the Buyer shall grant the Seller a corresponding security interest. If further declarations or actions are required for this purpose, the Buyer shall make such declarations and cooperate in all measures which are necessary and beneficial for the effectiveness and enforceability of such security rights.
9.7. If the Seller exchanges goods under warranty, it is agreed that the ownership of the goods in question shall pass from the Buyer to the Seller as soon as the Seller receives the goods from the Buyer.
§ 10 Return of goods
10.1 Goods may only be returned by the Buyer after prior consultation with the Seller. In the case of voluntary returns of goods, for which the Seller has no legal obligation, the goods may only be returned within two weeks of the written
consent of the Seller and only in unopened and resalable original packaging.
10.2 For voluntary returns of goods for which the Seller is not legally obliged to take back goods for which the Buyer is responsible or wishes to do so, the Buyer shall owe a handling and restocking fee of 10% of the net value of the goods, at least EUR 10.00 per transaction, which the Seller reserves the right to assert.
10.3 In case of voluntary returns of goods, the Buyer shall bear the freight risk and the freight costs for the return shipment.
10.4 For voluntarily taken back goods the Seller issues the Buyer with a credit note, which can only be settled by offsetting a delivery claim from a new order of the Buyer. Cash refunds are excluded, unless the Seller determines otherwise.
§ 11 Condition, use and notification of defects
11.1 The basis of the Seller’s warranty, if any, is primarily the agreed quality of the goods upon delivery. The agreed quality in accordance with § 434 BGB (German Civil Code) shall be deemed to be, in particular, the manufacturer’s information on performance specification, load and intended use of the goods in the Seller’s technical product sheets. The Seller warrants that the delivered goods have these characteristics, provided that the intended use as specified or customary in the technical product sheets is complied with at all times. Any attachments, lists and other documents of the Buyer shall not become part of any agreement on quality unless the Seller has expressly agreed to their validity.
11.2 The delivered goods are only intended for the intended and approved purposes. The Seller shall not be liable for expenses and damages resulting from use other than that intended in accordance with section 11.1 without prior express confirmation. The Buyer undertakes to indemnify the Seller from all claims of third parties for personal injury and/or property damage, insofar as such expenses and damage have arisen in connection with the use of the goods for purposes which have not been approved, prohibited or not in accordance with the intended use pursuant to section 11.1 without the prior express consent of the Seller.
11.3 The Buyer is solely responsible for the suitability and safety of the goods for use by the Buyer. Due to the large number of possible uses, the different requirements and individual conditions of use, the Seller cannot guarantee the suitability of the goods for a buyer-specific use deviating from the technical product sheets, if he has not expressly guaranteed the suitability in writing. The Buyer is obliged to check the suitability of the goods for the use intended by him. The Seller does not give any guarantee, in particular not for the composition, quality or durability of the goods.
11.4 The warranty rights of the Buyer presuppose that he has fulfilled his duties of examination and notification of defects. In particular, he must carefully inspect the delivered goods upon receipt without delay within one day of delivery to determine whether they correspond to the ordered goods and quantity and whether there is any recognizable transport damage or other recognizable defects. In addition, the Buyer shall notify the Seller in writing immediately after receipt of the goods of any obvious defects or damage that can be detected during such inspection, stating the specific complaints and defect symptoms, as well as the article number and quantity concerned. Hidden defects and field failures must be reported by the Buyer to the Seller in writing immediately after their discovery, with the corresponding information as per sentence 2 and with details of the place and date of their occurrence. The notification shall be deemed to be without delay if it is made within one week at
the latest, whereby the dispatch of the notification or complaint shall be sufficient to comply with the deadline. If the Buyer defaults on the proper inspection or notification of defects with the above information, the Seller’s liability for defects not notified or not notified in due time is excluded, in particular warranty claims pursuant to § 12.
11.5 The Buyer shall immediately give the Seller the opportunity and the necessary time to examine the defects notified and any measures already taken to this end – including by third parties. He must immediately present or make available to the Seller the goods complained about and submit complaint and service reports. At the request of the Seller, the Buyer is obliged to have the quality of the goods and the complaints recorded by a neutral expert or to give the Seller or his supplier the opportunity to check the identity and quality of the goods in question on the spot. Otherwise, he cannot refer to the defects notified to the Seller.
§ 12 Warranty
12.1 In the event of defects in the goods at the time of the transfer of risk, the Buyer shall have the right to supplementary performance by elimination of the defect or replacement delivery of defect-free goods at the Seller’s discretion within a reasonable period. The right of the Seller to refuse supplementary performance under the statutory conditions remains unaffected. If the Seller is not prepared or not in a position to provide supplementary performance after a reasonable period of time, the Buyer may, at his discretion, withdraw from the contract or reduce the purchase price. The same applies if the supplementary performance is unreasonable for the Seller. In the case of an insignificant defect, the buyer has no right to withdraw from the contract.
12.2 The Seller is entitled to make the supplementary performance owed dependent on the Buyer paying the purchase price due. The Buyer has the right to retain a reasonable part of the purchase price in relation to the defect.
12.3 The Seller shall bear the expenses necessary for the purpose of supplementary performance, such as transport, travel, labour and material costs, if it turns out that there was a defect at the time of transfer of risk. All other necessary expenses shall be determined according to objective standards in accordance with these GSC, insofar as they are necessary and appropriate. Any dismantling and installation costs associated with the supplementary performance of the goods processed by the Buyer or attached to another object are excluded if the goods have not been used by the Buyer for their intended purpose or have been used improperly. Explicitly not included in the necessary expenses are the Buyer’s own expenses, as well as damages that are not necessarily connected with the remedial action, damages due to loss of use, as well as frustrated expenses.
12.4 If the seller is not responsible for the defective delivery, the buyer can only demand reimbursement of his expenses for removal and installation costs necessary for subsequent performance to a proportionate extent up to a maximum of double the order value as subsequent performance. If the Seller is responsible for the defective delivery, the Buyer may demand full reimbursement of the necessary dismantling and installation costs under the conditions specified in section 13.1. In all other respects, claims for subsequent performance and recourse to payment of dismantling and installation costs due to defects are excluded regardless of fault.
12.5 The warranty claims of the Buyer shall lapse if the Buyer attempts to repair the goods himself or through a third party without the prior consent of the Seller or if he repairs or modifies the goods himself or through a third party, if the removal of defects is thereby rendered impossible or unreasonably difficult.
12.6 The warranty does not cover goods which, after their delivery to the Buyer, are impaired as a result of faulty or negligent handling, excessive stress, unsuitable operating materials or which are impaired due to special external influences which do not correspond to the intended use, as well as non-reproducible software errors. Furthermore, warranty claims do not exist if goods delivered by the Seller are handled improperly, operated incorrectly, destroyed by force or damaged by chemical, physical or electrical influences. In the event of the purchase of used goods, the purchaser shall likewise not be entitled to any warranty claims, subject to the unlimited liability pursuant to section 13.1.
12.7 Claims for reimbursement of expenses instead of damages in lieu of performance shall be excluded insofar as these were not necessary or a reasonable third party would not have incurred the expenses, which the Buyer shall state.
12.8 The limitation period for warranty claims of the Buyer is one year. The period of limitation for warranty claims shall commence from the passing of risk, at the latest upon delivery of the goods to the Buyer. For all other claims, including tortious claims, the period of limitation begins with the knowledge or grossly negligent ignorance of the Buyer of the circumstances substantiating the claim and the person of the debtor. If the goods have been used for a building in accordance with their intended use, the statutory limitation regulations shall apply. The unlimited liability of the Seller for damages resulting from the breach of a guarantee or from injury to life, body or health, for intent and gross negligence and for product defects according to the Product Liability Act shall remain unaffected by this; the statutory limitation periods shall apply exclusively to these.
12.9 If, as a result of a defect in the item delivered by the Seller, the Buyer had to take it back from an end customer of an entrepreneur, accept a reduction in the purchase price or pay damages or reimbursement of expenses, a deadline must be set for the rights against the seller described in § 437 BGB (German Civil Code), due to the defect asserted by the Buyer’s customer.
12.10 The statute of limitations for claims relating to the supply chain shall commence two months after the Buyer has fulfilled the claims of his customer. This suspension ends at the latest two years after the seller has delivered the goods in question to the buyer, if the buyer is or has been granted an equivalent compensation. In all other respects the statutory provisions on supplier recourse (§§ 445a, 445b BGB) shall apply.
12.11 A statement of the seller towards the Buyer regarding a notice of defect is not to be regarded as an acknowledgement of a defect or entry into negotiations regarding a claim or the circumstances justifying a claim, unless negotiations are expressly commenced. This also applies to the involvement of third parties if the Seller has rejected any claims.
12.12 The place of performance for subsequent performance and rectification of defects is the Seller’s registered office. The Seller is also entitled to supplementary performance and rectification of defects at the Buyer’s place of business.
§ 13 Compensation for damages
13.1 The Seller’s right to claim damages shall be governed by the statutory provisions, unless otherwise provided for in the GSC. The Seller shall have unlimited liability for damages resulting from the breach of a guarantee or from injury to life, body or health. The same applies to intent and gross negligence, to the mandatory statutory liability under the Product Liability Act and to liability for fraudulent concealment of defects. In the case of simple negligence, the Seller shall only be liable for damages in the event of a breach of a material contractual obligation arising from the nature of the contract, the fulfilment of which is essential for the proper performance of the contract and on which the Buyer may regularly rely. Such essential contractual obligations of
the Seller are in particular his main performance obligations, such as the delivery of the goods free of defects. In case of negligent violation of essential contractual obligations as well as in case of delay and impossibility, the liability of the Seller is limited to the foreseeable, typically occurring damage. Unless otherwise regulated above, the liability of the Seller is otherwise excluded.
13.2 If the Seller claims damages for non-performance and if the purchased item is still delivered by him or if it is taken back by him, he is entitled to a lump sum of 15% of the net purchase price as damages without the need for special proof. If the Seller proves that he has suffered further damage, he may also demand compensation for this. The Buyer reserves the right to prove that the damage was less.
13.3 If the Seller takes back the object of purchase in execution of the agreed retention of title in connection with his claims for damages due to non-fulfilment, he shall be entitled to a further payment of a lump sum of 10% of the net purchase price of the goods taken back in addition to the damages agreed in section 13.2 as compensation for the expenses of taking back and utilisation. The Buyer reserves the right to provide evidence of a lower damage.
13.4 Insofar as the Seller/Contractor provides technical information or acts in an advisory capacity and this information or advice is not part of the scope of services owed under the contract, this shall be free of charge and to the exclusion of any liability for damages.
§ 14 Product liability
14.1 The Buyer shall not modify the Goods without the prior consent of the Seller, in particular the Buyer shall not modify or remove any warnings about the dangers of improper use of the Goods. In the event of a breach of this obligation, the Buyer shall indemnify the Seller in the internal relationship from product liability claims of third parties, to the extent that the Buyer is responsible for the defect causing the liability.
14.2 If the Seller is required to recall or issue a product warning due to a defect in the Goods, the Buyer shall assist the Seller and take all reasonable steps as directed by the Seller. Buyer shall provide Seller with all documentation relating to the production, delivery and complaint handling of the Goods. Buyer shall be obliged to bear the costs of the product recall or warning to the extent that Buyer is responsible for the product defect and the damage incurred. Further claims of the Seller remain unaffected.
14.3 The Buyer shall immediately inform the Seller in writing of any risks in the use of the Goods and possible product defects or failures in each individual case.
§ 15 Industrial property rights and copyrights
15.1 The Seller shall remain the exclusive owner of all specifications, drawings, illustrations, technical descriptions and other technical information supplied or provided in connection with this contract. No license or right of use, industrial property rights, rights equivalent to industrial property rights or other intellectual property rights and industrial property rights shall be transferred to the Buyer with the purchase of the products. Excluded from this are rights that are imperatively connected with the delivery.
15.2 The goods may be subject to patent, trademark, copyright, design rights and other industrial property rights of third parties. The seller is not responsible or liable for claims in connection with an infringement of any of these rights.
15.3 The Buyer is not entitled to extract the constructional elements of the goods and reconstruct the Seller’s Goods on
the basis of the examination of the structure, condition and behaviour of the goods.
§ 16 Data protection
Personal data of the buyer (supplier and customer data) will be processed exclusively for the purpose of fulfilling the contract to which the buyer is a party as a person concerned, or for carrying out necessary pre-contractual measures which are carried out at the request of the buyer. The legal basis for the processing is Art. 6 paragraph 1 b) of the General Data Protection Regulation (DSGVO). Without prejudice to any statutory retention periods, this data will be deleted after termination of the contract. Responsible for this is Mr. Christian Stein, Westiger Straße 172 in 58762 Altena, Germany, telephone: +49 2352 7007 – 19, fax: +49 2352 7007 – 10; e-mail: email@example.com.
§ 17 Export, export control, customs duties, disposal
17.1 Delivered goods are intended to remain in the country of delivery agreed with the Buyer. Goods subject to embargo regulations may not be exported from the country of delivery by the Buyer.
17.2 The delivered goods are subject in particular to German, European and US export controls and embargo regulations. It is incumbent upon the Buyer to inform himself about corresponding export and/or import regulations or restrictions and, if necessary, to obtain corresponding approvals.
17.3 To the extent required by law, the Buyer shall be obliged to dispose of products covered by the German ElektroG,
BatterieG or the VerpackungsVO as well as the
corresponding statutory provisions separately applicable at its place of business on its own responsibility in accordance with all statutory provisions. The buyer shall assume all payment and notification obligations in connection
therewith to the extent legally possible and shall impose the above obligations on his customers accordingly.
17.4 The Buyer shall be liable to the Seller for all damage caused by its culpable failure to comply with the provisions of § 17 above and shall indemnify the Seller against any claims by third parties.
17.5 If the Seller has to pay any new, additional or modified duties, levies or similar costs directly to the Buyer or indirectly to its supplier in relation to the Goods, which were not foreseeable by the Seller in the price calculation in connection with the Goods purchased under these Conditions at the time of confirmation of the order to the Buyer and therefore not appropriately taken into account, the Seller may at its option either:
a) adjust the price stated in the order confirmation vis-à-vis the Buyer by an amount equal to the change for customs duties, taxes or comparable costs without
calculating an additional profit for the Seller; or
b) in the event of an unreasonable increase or reintroduction of customs duties, levies or comparable costs,
refund amounts already paid by the Buyer in
connection with an affected order and cancel the order without any liability on the part of the Seller arising from such cancellation subject to section 13.1.
When adjusting prices according to a), the Buyer shall be obliged to take into account cost increases only by taking into account opposite cost reductions of customs duties, levies or comparable costs and to balance such cost increases and reductions. If the increase amounts to more than 10% compared to the purchase price originally agreed with the Buyer, the Buyer may withdraw from the contract concluded.
Special conditions for service, maintenance, calibration and repair work (§§ 18 – 23 GSC)
§ 18 Area of application
In addition to or with priority over the aforementioned Terms and Conditions §§ 1 – 17, the following Terms and Conditions §§ 18 – 23 shall apply to maintenance and repair work, the type and scope of which shall be governed by an order separately agreed with the Client. Only the Contractor’s devices and equipment shall primarily be considered as subjects of the contract. The work shall be carried out at the Seller’s works.
§ 19 Procedure and obligations of the parties
19.1 When sending equipment and installations to the Contractor’s service, a receipt will be issued upon receipt and forwarded to the Client. Subsequently, a cost estimate or a quotation shall be prepared at the request of the Client. Cost estimates or quotations shall only be binding if they are submitted in writing and designated as binding. The same applies to any supplementary offers, should further maintenance or repair requirements become apparent during the work, in particular the replacement of wear parts. The price commitment shall be a maximum of 1 month from the date of issue of the offer, unless expressly agreed otherwise. Thereafter, the material prices and billing rates valid on the day of performance shall apply in accordance with the Seller’s “Price List for Services” (service rates). The service rates can be called up from the Contractor at any time.
19.2 If the Client does not place an order after the devices and equipment have been sent to the Client, the Client shall owe a lump sum of EUR 55.00 plus any transport costs incurred and any VAT due.
19.3 The Client is obliged to return the item to be repaired free of contamination. The Client must confirm this to the Contractor in writing with the “Return and Decontamination Declaration”. The Client is obliged to mark the device and equipment explicitly and clearly visible as decontaminated. Contaminated devices and equipment may only be delivered to the Contractor after registration, inspection and release by the Contractor. If it is established during maintenance or repair that the goods are not free of contamination, the Contractor is entitled to stop all work immediately. In this case the Client shall bear all additional costs.
19.4 The object of maintenance or repair need only be restored to its original condition following a discontinuation of maintenance or repair for which the Contractor is not responsible at the express request of the Client, against reimbursement of the costs incurred for this, unless the work carried out was not necessary.
19.5 The service owed by the Contractor shall be rendered during the Contractor’s normal business hours. If overtime, work on Sundays and public holidays or outside the normal business hours of the Contractor is necessary in the interest of the Client, the Contractor may charge these separately according to the Contractor’s “Price List for Services” (service rates).
19.6 The Client shall decide on the use and whereabouts of parts removed outside the warranty. Unless otherwise requested by the Client, the dismantled parts will always be disposed of in accordance with professional regulations. The contractor will charge the Client for the disposal costs, including wage and ancillary costs.
19.7 The Contractor is entitled to have the orders placed with him carried out by specialist or partner companies commissioned by him.
19.8 The Client is obliged to accept the maintenance and/or
repair work as soon as he has been notified of its
completion and a contractually agreed test of the object of repair has taken place. If the repair work proves to be
defective and if the defect is only insignificant, the Client may not refuse acceptance if the Contractor expressly
acknowledges the obligation to remedy the defect.
19.9 Acceptance of the services rendered by the Contractor shall take place at the latest upon recommissioning of the devices and equipment that are the subject of the order and/or by the Client’s acceptance without objection of the services rendered by the Contractor.
§ 20 Prices and service rates
20.1 All prices stated by the Contractor are net prices. The transport and packaging costs will be charged separately. Value added tax is to be paid additionally by the Client in the respective statutory amount.
20.2 The work to be carried out by the Contractor will be charged at a flat rate or unit price, depending on the agreement. In principle, the invoicing is based on unit prices according to the Contractor’s current “Price List for Services” (service rates).
20.3 spare parts are required which exceed the spare parts required within the scope of the agreed repair or maintenance, they will be charged for the replacement, as well as the working hours associated with the replacement, including releases, necessary special trips, etc. – will be invoiced by the Contractor at the currently valid price and charge rates according to the Contractor’s “Price List for Services” (service rates).
§ 21 Risk, insurance, other costs
21.1 Unless otherwise agreed in writing, delivery and removal of the object of maintenance or repair – including any packaing and loading – shall be carried out at the Client’s request and at his expense. Otherwise, the Client shall deliver the object of repair to the Contractor at its own expense and collect it again from the Contractor after completion of the repair by the Client.
21.2 The Client shall bear the risk of transport. The return transport can be insured by the Contractor against insurable transport risks at the Client’s expense.
21.3 During the maintenance or repair period at the Contractor’s works, insurance cover shall exist for the object of maintenance or repair.
21.4 In the event of a delay on the part of the Client in taking back the maintenance or repair item, the Client shall bear the costs incurred for storage at the Contractor’s works. The object of maintenance or repair can also be stored elsewhere at the discretion of the Contractor. The costs and risk of storage shall be borne by the Client.
§ 22 Warranty
22.1 Warranty claims with regard to the named services,
calibration and other maintenance and repair work of the Client shall be governed by the statutory provisions (§§ 633 et seq. BGB), unless otherwise agreed in the contract.
22.2 The warranty does not extend to services or replaced parts which, after they have been provided, are impaired as a
result of incorrect or negligent handling, excessive use,
unsuitable operating materials or due to special external
influences. Clause 12. 6 shall apply accordingly.
22.3 The warranty period for services or replaced parts is 12 months from the day on which the replacement or repair is completed.
22.4 Insignificant deviations from the agreed performance or
insignificant impairments of the function do not constitute defects in the maintenance or repair work performed.
§ 23 Contractual right of lien
If the object of the contract reaches the Contractor’s headquarters, the Contractor is entitled to a contractual lien on the object of the contract due to outstanding claims from the contractual relationship between the Contractor and Client.
§ 24 Closing provisions
24.1 The transfer of rights and obligations of the buyer to third parties is only effective for the Seller with the written consent of the Seller.
24.2 Place of performance for the contractual obligations is the registered office of the Seller.
24.3 The place of jurisdiction for all disputes arising from the contractual relationship is the Seller’s place of business. The Seller shall also be entitled to bring an action at the Buyer’s place of business and at any other admissible place of jurisdiction.
24.4 Furthermore, in international contractual relationships, the Seller shall have the right, as plaintiff, to appeal to the court of arbitration at the Chamber of Industry and Commerce (IHK) Frankfurt. In this case, the court of arbitration will finally decide the legal dispute in accordance with the Arbitration Rules of the German Institution of Arbitration. (DIS) under exclusion of the ordinary course of law. The initiation of legal dunning proceedings by the Seller does not constitute the exercise of the right to choose.
24.5 The contractual relationship including its interpretation and execution shall be governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention).
24.6 Should any provision of these GSC be or become invalid or unenforceable in whole or in part, or should there be a gap in these GSC, the validity of the remaining provisions shall not be affected. In their place, the effective or feasible provision that comes closest to the purpose of the invalid or unenforceable provision shall be deemed agreed; the same shall apply insofar as a matter requiring regulation is not expressly regulated.
Status: November 2022
General Terms and Conditions of Purchase (GPC)
§ 1 Area of application
1.1 These General Terms and Conditions of Purchase (GSP) shall apply to all business transactions, in particular to orders between the GRAETZ Strahlungsmeß-technik GmbH, Westiger Straße 172 in 58762 Altena and ist affiliated companies (hereinafter referred to as „Buyer“) and suppliers and other business partners (hereinafter referred to as „Seller“), if they are entrepreneurs (§ 14 BGB), a legal entity under public law or a special fund under public law. They also apply to contracts for work and services.
1.2 Conflicting, additional or deviating terms and conditions of the Seller shall not form part of the contract, unless the Buyer has expressly agreed to their validity in writing.
1.3 These GPC shall also apply if the Buyer accepts a delivery of the Seller without reservation in the knowledge of the Seller’s conflicting or deviating terms and conditions or does not include these GPC in future transactions in individual cases.
1.4 Rights to which the Buyer is entitled under the statutory provisions beyond the scope of these GPC shall remain unaffected.
1.5 Contract language is German. If the contractual partners use another language, the German wording and the German version of these GPC shall be authoritative.
§ 2 Conclusion of contract and contract amendments
2.1 An order of the Buyer is only considered to be a legally binding offer if it has been placed in writing by the Buyer or, in the case of an order placed verbally, by telephone or by other means of remote communication, has been confirmed in text form. The same applies to changes and additions. The silence on offers, requests or other declarations of the Seller is only considered as consent, if this was expressly agreed in writing. Insofar as orders contain obvious mistakes or calculation errors, they are not binding for the Buyer.
2.2 The Buyer is bound to his offer for 14 days from the date of the offer. A request to the Seller by the Buyer or a person acting on behalf of the Buyer to submit an offer does not imply any obligation on the part of the Buyer to pay the costs of the offer, unless expressly agreed otherwise.
2.3 The Seller shall issue the Buyer with a written order confirmation in which the price and delivery date are expressly stated without delay, but no later than within the 14 days after the date of the offer referred to in Section 2.2. If, in exceptional cases, no order confirmation is sent by the Seller, the contract shall be concluded by delivery of the ordered products, invoicing or performance of the service by the Seller, unless the Buyer objects. If deviations from the offer of the buyer are unavoidable, the seller has to point this out to the buyer expressly in writing. Deviations of the confirmation of order compared to the order are only considered as agreed upon when they have been expressly confirmed in writing by the Buyer.
2.4 The Seller authorizes the Buyer to transfer the manufacturer’s warranty issued for the Goods to its customers on behalf of the Seller.
2.5 The Buyer is entitled to change the order. The Seller must inform the Buyer in writing of the consequences of a desired change to the order (e.g. higher costs, deterioration in quality). The Seller may make changes only after the Buyer has given its written consent to the consequences of a desired change.
2.6 If it becomes apparent to the Seller during the performance of a contract that deviations from the originally agreed specification are necessary or expedient, the Seller shall inform the Buyer immediately and submit proposals for changes. The Buyer shall inform the Seller whether and which changes he has to make compared to the original order. If these changes change the costs incurred by the Seller in the execution of the contract, both the Buyer and the Seller shall be entitled to demand a corresponding adjustment of the agreed prices.
§ 3 Prices and terms of payment
3.1 The prices and currencies stated in the order are binding. All prices are net prices without VAT, including freight, insurance, packaging and all other ancillary costs free for delivery to the place of delivery named by the Buyer. Price increases, for whatever reason, will only be accepted by the Buyer if a written agreement has been made in this respect.
3.2 Invoices shall be issued separately for each order after dispatch of the goods and shall state the order number and tax number; the value added tax shall be shown separately in the invoice. Invoices not issued in due form shall be deemed not issued and due.
3.3 The payment by the buyer is made after acceptance of the goods and receipt of the invoice within 14 days with a discount of 3%, within 30 days net. Payment is subject to the reservation of invoice verification.
3.4 In the event of defective delivery, the buyer is entitled to withhold payment until proper performance without loss of rebates, discounts or similar price reductions. The payment period begins after complete elimination of the defects. In the event of premature delivery of the goods, the payment period shall not begin before the agreed delivery date and delivery of the invoice. If the seller has to provide material tests, test reports, quality documents or other documents, the acceptance of the goods by the buyer requires the receipt of these documents.
3.5 In the event of default in payment, the Seller may demand interest on arrears from the Buyer at a rate of 2 percentage points above the respective base interest rate, taking into account the current interest rate situation, unless the Buyer can prove that the Seller has suffered less damage. The Seller shall be entitled to withdraw from the contract after the fruitless expiry of a reasonable grace period with a warning of refusal, which he has set for the Buyer after the default in payment has occurred.
3.6 Unless otherwise agreed, payments by the Buyer shall only be made to the Seller. The Buyer shall be entitled to rights of set-off and retention to the statutory extent. The Seller shall only be entitled to set off claims against the Buyer if and to the extent that his claims are undisputed or his counterclaim has been legally established. The same applies to a right of retention of the seller, which the seller can only assert if his counterclaim is based on the same contractual relationship.
§ 4 Delivery, transfer of risk and ownership
4.1 Deliveries shall be made DDP according to Incoterms® 2020 to the Buyer’s place of business or the place designated by the Buyer, unless otherwise agreed.
4.2 Each delivery must be accompanied by complete accompanying documents, in particular a delivery bill with order number, content, type and quantity. Technical certificates, attestations, test reports, acceptance reports, quality inspection reports, product sheets and other documents required for the contractual use of the goods shall be delivered free of charge with the goods.
4.3 The delivery shall be made in packaging appropriate to the type of goods and taking into account the means of transport used and any general packaging regulations that may exist for these means of transport. In particular, the goods must be packed in such a way that transport damage is avoided. Packaging materials shall be used to the extent necessary for this purpose. The supplier shall be liable for damage due to improper packaging in accordance with the statutory provisions.
4.4 Before the delivery of the goods, the Seller carries out a final and comprehensive production and outgoing goods inspection. The Seller shall keep a record of this and shall forward inspection reports and documents to the Buyer upon request.
4.5 Shipment is at the risk of the Seller. The Seller shall bear the risk of accidental loss or accidental deterioration of the goods until they are accepted by the Buyer.
4.6 The goods become the property of the Buyer immediately and unencumbered upon delivery.
§ 5 Periods and dates, delay in delivery
5.1 Agreed dates and deadlines are binding and must be strictly adhered to by the Seller. Decisive for this is the receipt of the goods by the buyer or the place of delivery specified by him. Delivery periods start from the date of the conclusion of the contract.
5.2 As soon as the Seller is aware that there may be a delay in delivery, he shall notify the Buyer immediately in writing, stating the reasons and the expected duration of the delay. This does not change the binding nature of the agreed delivery date.
5.3 A delivery before the agreed delivery date is only permissible with the prior written consent of the Buyer. If the delivery is made before the agreed delivery date, the Buyer is entitled to reject the delivery or to store it at the Seller’s expense. Partial deliveries are also inadmissible on principle, unless the Buyer has expressly agreed to them or they are reasonable for him.
5.4 The Buyer shall be entitled to withdraw from the contract in the event of a delay in delivery regardless of the Seller’s fault. If the Seller is in default, the Buyer shall be entitled to claim 0.1% of the order value for each working day of delay, but not more than 5% in total, as a contractual penalty. Excluded are cases of force majeure. The Buyer may assert the reservation required according to § 341 para. 3 BGB (German Civil Code) until full payment of the service. The assertion of further damages is not excluded by the contractual penalty.
5.5 The delivery claim of the Buyer shall only be excluded if the Seller pays damages to the Buyer instead of delivery at the Buyer’s request. The unconditional acceptance of the delayed delivery does not constitute a waiver of claims for damages.
§ 6 Warranty
6.1 The statutory rights in the event of material defects and defects of title shall apply, unless otherwise provided for in the following. The Seller shall be liable in accordance with the statutory provisions, without this liability being limited or excluded on the merits or in the amount.
6.3 Agreed specifications are part of the contract and can only be changed with the agreement of both parties. Any description of the scope of delivery, data sheets, illustrations or a drawing as well as approved samples and reliability data of the Seller which are to be regarded as binding shall also be deemed to be specifications. The goods are suitable for the use notified to the Seller in the order or upon conclusion of the contract or otherwise brought to the Seller’s attention.
6.3 Unless otherwise agreed, the Seller shall constantly align the deliveries of goods with the latest state of the art and shall inform the Buyer about possibilities for improvement or technical changes.
6.4 The Seller warrants that the delivered goods comply with the latest state of the art, the relevant legal provisions and the regulations and guidelines of authorities, professional associations and trade associations, in particular the GefStoffV, the Product Safety Act and the accident prevention, labour, environmental and other safety and protection regulations, in particular DIN standards and VDE regulations. In the event of liability, the seller shall indemnify the buyer from all claims of third parties which are asserted against the buyer or customers of the buyer due to the violation of these regulations. Further claims of the buyer against the seller remain unaffected.
6.5 If the Buyer is responsible for the inspection of the goods and the notification of defects according to § 377 para. 1 HGB (German Commercial Code), he will check immediately after receipt of the goods whether they correspond to the ordered quantity and type and whether there are any externally visible transport damages or defects, as far as and as soon as this is feasible according to the normal course of business and he has no indications which make further investigations necessary. The Buyer must report hidden defects within 14 working days of their discovery. In this respect, the Seller waives the objection of delayed notification of defects. The acceptance of the goods as well as the processing, payment and/or reordering of goods not yet recognized and notified as defective does not constitute approval of the delivery and no waiver of claims for defects.
6.6 The type of supplementary performance (rectification or replacement delivery) shall be determined at the discretion of the Buyer, unless this is only possible at disproportionate cost to the Seller.
6.7 If the Seller does not fulfil its obligation to provide supplementary performance within a reasonable period of time set by the Buyer without having the right to refuse supplementary performance, the Buyer may carry out the necessary measures itself or have them carried out by a third party at the Seller’s expense and risk and demand reimbursement of the necessary expenses from the Seller. If the supplementary performance has not been effected within a reasonable period of time, has failed, or if the setting of a deadline was dispensable, the Buyer may withdraw from the contract and/or claim damages in accordance with the statutory provisions.
6.8 If, due to particular urgency and/or the otherwise expected unreasonably high damage in relation to the warranty obligation, it is not possible to inform the Seller of the defect and the impending damage and to set him an albeit short deadline for remedy, the Buyer shall be entitled to carry out this measure immediately and without prior consultation and to demand compensation from the Seller for the necessary expenses.
6.9 Furthermore, the Seller is also obliged to reimburse the necessary expenses in the context of supplementary performance, in particular if the Buyer has installed the defective goods in another item or attached them to another item in accordance with their type and intended use. Necessary expenses include in particular shipping, transport, handling, labour or material costs, as well as dismantling and installation costs, costs for removal, as well as costs for troubleshooting, sorting or special measures.
6.10 If a claim is asserted against the Buyer on the basis of strict liability of a right that cannot be assigned to a third party, the seller shall be liable to the Buyer to the extent that he would also be directly liable.
6.11 The limitation period for warranty claims is 24 months from the transfer of risk. Warranty claims for defects notified within the limitation period shall become statute-barred at the earliest six months after the notification of the defect. In the event of rectification of defects or subsequent delivery, the limitation period shall begin anew, unless the Buyer is not acting in performance of an (alleged) obligation to rectify the defect, but purely as a gesture of goodwill. In all other respects, the statutory limitation regulations shall apply.
6.12 If the Buyer procures the goods for the purpose of reselling them to his customers, the limitation period shall commence at the time when the limitation period from the resale of the goods begins to run, but no later than six months after the transfer of risk to the Buyer.
6.13 If the Buyer had to take back a product as a result of a defect in the goods delivered by the Seller, which was built into the product, accept a reduction in the purchase price or pay damages or compensation for expenses to his customer, no other deadline need be set for the rights against the Seller described in § 437 BGB (German Civil Code) due to the defect asserted by the Buyer’s customer. The statute of limitations shall commence at the earliest two months after the time at which the Buyer fulfils the claims of his customer. This suspension of the statute of limitations ends at the latest five years after the time at which the Seller has delivered the goods in question to the Buyer. In all other respects the statutory provisions on supplier recourse (§§ 445a, 445b BGB) shall apply.
6.14 If a material defect becomes apparent within 6 months of the transfer of risk, it is assumed that the defect was already present at the time of the transfer of risk, unless this assumption cannot be reconciled with the nature of the item or the defect.
6.15 The Seller is liable for his representatives and subcontractors to the same extent as for his own fault. The Seller’s suppliers are considered to be his vicarious agents.
§ 7 Product liability
7.1 The Seller is obliged to indemnify the buyer and his customers from claims of third parties arising from product liability, which can be traced back to a defect of the product delivered by him, as far as he is responsible for the product defect and the occurred damage according to product liability law principles and if he is at fault. Further claims against the seller remain unaffected. If the cause of the damage lies within the responsibility of the seller, he must prove that he is not at fault.
7.2 Under the same conditions as in section 7.1 sentence 1, the Seller shall in particular reimburse the Buyer for legal costs and such expenses arising from or in connection with necessary precautionary measures taken by the Buyer or its customers against a product liability claim, in particular a warning, exchange or recall action. The Buyer shall inform the Seller of the content and scope of the measures to be carried out, as far as possible and reasonable, and shall give the Seller the opportunity to comment.
7.3 The Seller shall insure itself against all risks arising from product liability, including the risk of recall, in an appropriate amount of at least EUR 10 million per personal injury/property damage and shall prove this to the Buyer upon request by presenting its insurance policy.
§ 8 Property rights, confidentiality and data protection
8.1 The Seller warrants that the delivery and use of the goods do not infringe any patents, licenses or other industrial property rights and copyrights of third parties. If any claim is made against Buyer or Buyer’s customers by any third party for infringement of such rights as a result of the delivery or use of the Goods, Seller shall indemnify Buyer or Buyer’s customers against such claims at first request and shall reimburse Buyer for all expenses incurred by Buyer in connection with the claim, unless the Goods were manufactured by Seller in accordance with drawings or other detailed specifications provided by the claimant.
8.2 The Seller grants to the Buyer and its customers the non-exclusive, transferable, geographically and temporally unlimited right to use and internationally distribute the Seller’s goods. The Seller undertakes not to assert any intellectual property rights against any use of the Goods.
8.3 Goods that have been developed by the Buyer or his customers may not be used by the Seller himself or offered
or delivered to third parties. Drawings and other items or documents provided by the Buyer remain his property and may not be passed on to third parties or otherwise used for the Seller’s own purposes without his prior express written consent.
8.4 The Seller is obliged to keep secret for an indefinite period of time all information about the Buyer to which he gains access which is designated as confidential or which is recognisable as a business or trade secret according to other circumstances, and not to record, pass on or utilise such information unless this is necessary for delivery to the Buyer.
8.5 The examination, dismantling, rebuilding, opening, disassembly or testing of a product or sample of the Buyer (reverse engineering) is not permitted without the prior written consent of the Buyer.
8.6 The Seller shall ensure by suitable contractual agreements with the employees and agents working for him that they too shall refrain for an unlimited period from any own exploitation, disclosure or unauthorized recording of such business and trade secrets.
8.7 The Seller’s personal data will be processed exclusively for the purpose of fulfilling the contract to which the Seller is a party as a data subject or for carrying out necessary pre-contractual measures taken at the request of the Seller. The legal basis for the processing is Art. 6 paragraph 1 b) of the General Data Protection Regulation (DSGVO). Notwithstanding any statutory retention periods, these data will be deleted after termination of the contract. Responsible for this is Mr. Christian Stein, Westiger Straße 172 in 58762 Altena, Germany, telephone: +49 2352 7007 – 19, fax: +49 2352 7007 – 10; e-mail: firstname.lastname@example.org.
§ 9 Liability of the Buyer
9.1 The Buyer shall have unlimited liability for damages resulting from the breach of a guarantee or from injury to life, body or health. The same applies to intent and gross negligence as well as fraudulent intent. The Buyer shall only be liable for slight negligence in the event of a breach of material contractual obligations which arise from the nature of the contract and which are of particular importance for achieving the purpose of the contract. In the event of a breach of such obligations, the liability of the Buyer shall be limited to such damages as are typically to be expected under the contract. An obligatory legal liability for product defects remains unlimited.
9.2 Force majeure, operational disruptions, unrest, official measures, industrial disputes, epidemics and pandemics as well as other unavoidable events shall release the Buyer from the obligation to accept the goods in due time for the duration of their existence. During such events as well as within two weeks after their end, the Buyer shall be entitled – without prejudice to any other rights – to withdraw from the contract in whole or in part, provided that such events are not of insignificant duration and the Buyer’s requirements are considerably reduced due to the fact that the goods have to be procured elsewhere.
§ 10 Closing provisions
10.1 Should any provision of these GCP be or become invalid or unenforceable in whole or in part, or should there be a gap in the GCP, the validity of the remaining provisions shall not be affected thereby. In their place, the provision that comes closest to the purpose of the invalid or unenforceable provision shall be deemed agreed; the same shall apply if a matter requiring regulation is not expressly regulated.
10.2 The Seller is only entitled to transfer rights and obligations from contracts with the Buyer to third parties or to have an order or essential parts of an order executed by
third parties with the express prior written consent of the Buyer.
10.3 Changes to contractual provisions between the parties to the contract, as well as the waiver of rights from these provisions, must be made in writing, unless a stricter formal requirement applies. This also applies to the waiver of this written form clause.
10.4 The place of performance for all services, in particular for delivery, payment and any supplementary performance, is for both parties the domicile of the Buyer or for the delivery a place of delivery named by the Buyer which differs from the above.
10.5 The exclusive place of jurisdiction for all disputes arising from the contractual relationship between the Buyer and the Seller is the domicile of the Buyer. The Buyer may, at his own discretion, also bring an action at the Seller’s registered office or his branch office as well as at any other admissible place of jurisdiction.
10.6 The contractual relationship between the Buyer and the Seller, including its interpretation and execution, shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention). Deviating mandatory legal responsibilities remain unaffected.
Status: November 2022