General Terms and Conditions

GENERAL TERMS AND CONDITIONS

 

I. Scope of Application
These general terms and conditions apply to all – including future – transactions with the buyer, who is not a consumer. General terms and conditions of the buyer are contradicted. The following terms and conditions shall be deemed to be the sole binding legal basis at the latest upon acceptance without objection of the items delivered by Gremco GmbH and/or the services rendered by Gremco GmbH.

II. General Provisions

  1. The offers of Gremco GmbH are subject to confirmation. Unless otherwise agreed, the contents of offer documents within the meaning of clause XI 1 shall not be binding.
  2. All declarations and agreements must be made in writing or in electronic form to be valid.
  3. Should individual provisions of these General Terms and Conditions or of the contract be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
  4. The buyer is not entitled to assign claims arising from contracts with Gremco GmbH.
  5. The buyer shall only be entitled to a right of retention and a right of set-off insofar as his counterclaims have been acknowledged by Gremco GmbH in writing or have been legally established.
  6. The INCOTERMS as amended from time to time shall be decisive for the interpretation of commercial clauses.

III. Delivery

  1. Compliance with delivery dates shall be subject to the timely receipt of all documents and information to be provided by the Purchaser as well as compliance with agreed terms of payment – also in the context of other transactions – and other obligations by the Purchaser. If these preconditions are not duly fulfilled in due time, the delivery dates shall be reasonably extended. This shall not apply if Gremco GmbH is responsible for the delay.
  2. The delivery obligation of Gremco GmbH shall be subject to timely and contractual delivery by upstream suppliers. Unforeseen interruptions of operations, exceeding of delivery periods or delivery failures, also on the part of the upstream suppliers, shortage of labor, energy or raw materials, strikes, lockouts, traffic disruptions, official decrees and cases of force majeure shall release the contracting party affected thereby from the obligation to deliver or accept for the duration of the disruption and to the extent of its effect. If delivery or acceptance is delayed by more than one month as a result, each party shall be entitled to withdraw from the contract within a short period of time with regard to the quantities affected by the disruption of delivery or acceptance to the exclusion of all further claims.
  3. Gremco GmbH shall always be entitled to make partial deliveries. If partial deliveries have been agreed between Gremco GmbH and the purchaser (call-off orders), the purchaser shall be obliged to accept approximately the same monthly quantities in the absence of any written agreement to the contrary. 4. (4) Deliveries shall be made ex distribution warehouse Gremco GmbH. Delivery dates shall be deemed to have been met if the goods have been handed over to the forwarding agent or carrier in due time. This also applies to deliveries “free domicile”.
  4. Excess or short deliveries of up to 10 % of the contractual quantity shall be deemed insignificant within the meaning of Clause IX. It shall be incumbent upon the buyer to immediately object to short deliveries in writing. Otherwise he shall lose the right to invoke the deviation.
  5. If Gremco GmbH is in default with a delivery, the buyer shall grant Gremco GmbH a reasonable grace period. After expiry of this period and prior warning of refusal, the purchaser may withdraw from the contract. The purchaser shall only be entitled to claims for damages within the scope of clause X if the legal requirements are fulfilled.

IV. Transfer of risk
The risk of loss and deterioration of delivery items shall pass to the purchaser at the moment Gremco GmbH has handed over the items to the forwarding agent or the carrier or at the moment Gremco GmbH has informed the purchaser that the items are ready for dispatch. This shall also apply if Gremco GmbH has assumed the costs of shipment to the place of destination.

V. Prices

  1. Unless otherwise agreed, the prices of Gremco GmbH shall apply ex delivery warehouse Augsburg, including loading, but excluding transport, insurance and statutory value added tax.
  2. Gremco GmbH shall be entitled to demand immediate reimbursement of freight and other expenses or outlays incurred.
  3. Should Gremco GmbH incur taxes, customs duties or similar expenses in the buyer’s country due to deliveries to the buyer or should fees or charges, in particular customs duties or taxes, be introduced or increased after conclusion of the contract, these shall be borne by the buyer.
  4. Unforeseen additional expenses in connection with the execution of the contract, such as in cases of force majeure or increased freight charges due to changed transport conditions, shall be borne by the Buyer. The same applies if the execution of the contract is delayed for a reason for which the Buyer is responsible (for example delayed payment, lack of cooperation in the execution of the contract, etc.).
  5. In case of a net order value of less than 150,- EUR, Gremco GmbH reserves the right to charge a lump sum for small quantities of 50,- EUR.
  6. Concluded purchase contracts can only be cancelled upon payment of the following cancellation fees:
    1. for goods in stock: 15 % (but at least 75,- EUR)
    2. for custom-made goods: 75 %.

VI. Payment

  1. Invoices of Gremco GmbH shall be paid net within 30 days from the date of invoice at the latest. Upon expiry of this period, the purchaser shall be in default.
  2. If the receipt of an invoice is uncertain, the buyer shall be in default at the latest 30 days after delivery of the goods or notification of readiness for shipment.
  3. Checks and bills of exchange shall be accepted subject to their discountability only on the basis of special agreements and only on account of performance, with all costs and expenses being charged. Credit notes shall be issued on the day on which Gremco GmbH can freely dispose of the equivalent value. An earlier due date in case of default of the buyer remains unaffected.
  4. If the buyer does not pay an invoice in due time, Gremco GmbH shall be entitled to charge interest in the amount of 8% above the respective base interest rate. Gremco GmbH reserves the right to claim further damages caused by default.
  5. In case of default of payment by the purchaser, Gremco GmbH shall be entitled to make all claims arising from the entire business relationship due immediately. Discount agreements, rebates, price reductions, etc. shall be deemed forfeited in this case.
  6. In case of partial deliveries, an invoice shall be issued for each delivery, which shall be payable in accordance with the above conditions.
  7. If Gremco GmbH becomes aware of circumstances (repeated default of payment, bill and cheque protests, compulsory enforcement measures, etc.) which make its claims appear to be at risk, Gremco GmbH shall be entitled to suspend outstanding deliveries – also from other contracts – or to perform them only against advance payment or against security, in particular a bank guarantee. If the purchaser does not comply with a corresponding request of Gremco GmbH within a reasonable period of time, Gremco GmbH shall be entitled to withdraw from the contract in whole or in part and/or to claim damages for non-performance.

VII. Packing

  1. Gremco GmbH shall take back packaging material free of charge at the place of performance (clause XIV 1) if and to the extent that there is a legal obligation to do so. If Gremco GmbH designates a disposal location for the return which is different from the place of performance, the purchaser shall be obliged to return the packaging at this location if this is not unreasonable due to the different distance. The costs of transport to the place of return shall be borne by the purchaser.
  2. Unless otherwise agreed in writing, cable drums shall remain the property of Gremco GmbH. If the buyer has paid a deposit for cable drums, this deposit will only be refunded if the buyer has returned the cable drums to Gremco GmbH free place of performance within one year after delivery in a defect-free condition.

VIII. Retention of Title

  1. Delivered items shall remain the property of Gremco GmbH until all claims, including future claims, arising from the entire business relationship with the buyer have been satisfied in full.
  2. If the delivered items are processed by the buyer or combined with third party material, Gremco GmbH shall acquire co-ownership of the manufactured new items in the ratio of the invoice value of the items delivered under retention of title to the invoice value of the newly created item. In case of processing the purchaser shall act for Gremco GmbH, but shall not acquire any claims against Gremco GmbH due to the processing. The buyer shall be obliged to store the goods subject to retention of title for Gremco GmbH carefully and free of charge.
  3. The buyer may resell the goods delivered under retention of title only in the ordinary course of business at usual market prices under retention of title and only as long as he fulfils all his payment obligations towards Gremco GmbH when due. The buyer shall not be entitled to dispose of the items delivered under retention of title in any other way.
  4. f the purchaser resells the items delivered by Gremco GmbH unprocessed, the purchaser hereby assigns to Gremco GmbH the claims accruing to him from such sales with all principal and subsidiary rights. The assigned claims shall serve as security to the same extent as the items delivered under retention of title.
  5. The purchaser shall be entitled to collect claims from the resale for the account of Gremco GmbH. Upon request of Gremco GmbH, the purchaser shall be obliged to inform his customers immediately of the assignment and to hand over to Gremco GmbH the information and documents required for collection. The buyer shall in no case be entitled to further assignment of claims.
  6. The buyer shall notify Gremco GmbH without delay of any seizure or other impairment by third parties of the items delivered under retention of title.
  7. If the value of the existing securities exceeds the secured claims from the business relationship by more than 20 % in total, Gremco GmbH shall be obliged to release securities of its own choice upon request of the buyer.
  8. In the event of a breach of contract by the purchaser, in particular in the event of default in payment, Gremco GmbH shall be entitled to take back any items delivered under retention of title even without rescinding the contract and the purchaser shall be obliged to surrender such items. In case of doubt, the assertion of claims for return with reference to the reservation of title shall not be deemed to be a withdrawal from the contract.
  9. If the retention of title is not legally effective under the law of the country in which the goods subject to retention of title are located or in which they have been processed or handled, the legally possible security which comes closest to the retention of title shall take its place.

IX. Liability for defects

  1. The supplier shall be liable for ensuring that the delivered item complies with the agreed quality and is free of defects of title at the time of transfer of risk. In the absence of an agreement on quality, the supplier shall only be liable for the fact that the delivered item is suitable for normal use and has a quality which is usual for items of the same type and which the purchaser can expect according to the type of item. Insignificant deviations shall be disregarded.
  2. The Supplier shall remain entitled to make constructive changes to the goods insofar as the agreed quality or suitability for normal use is not impaired thereby.
  3. The Buyer shall lose the right to invoke a defect if he does not inspect the delivered item immediately after delivery and does not immediately give written notice of any defect which he has discovered or should have discovered. The complaint must specify the exact nature of the material defect. The same shall apply to defects of title.
  4. If there is a substantial defect, the following shall apply exclusively:
    1. The Purchaser may demand as supplementary performance the delivery of a defect-free item (replacement delivery) within a reasonable period of time, concurrently with the return of the defective item in accordance with the statutory provisions.
    2. The supplier may refuse subsequent performance in particular if it is only possible at disproportionate cost or if it is impossible due to the nature of the item or the defect.
    3. The Supplier shall not have to reimburse the expenses required for the purpose of subsequent performance if and to the extent that such expenses increase because the Purchaser has taken the item to a place other than the contractually agreed destination after the passing of risk or has made use of it in a manner not foreseeable under the contract.
    4. If the Supplier refuses subsequent performance or if subsequent performance finally fails, which is rebuttably presumed after more than three attempts at subsequent performance within a reasonable period of time, the Purchaser may rescind the contract or demand a price reduction; the Purchaser shall lose the right to rescind the contract if it does not exercise it within a reasonable period of time.
    5. The Purchaser may only claim damages under the additional conditions set out in Clause X. The Supplier shall only be obliged to compensate for consequential damages, in particular loss of profit, in cases of intent and gross negligence.
  5. Guarantees of the supplier must be made in writing or in electronic form to be effective. The Purchaser may, at its option, assert either the claims under the warranty or the claims for defects pursuant to Clause IX, 4.
  6. Claims for defects of the purchaser are subject to a limitation period of 1 year. The period begins with delivery. Sections 438 para. 1 no. 2, 479 para. 2 and 634 a para. 1 no. 2 BGB shall remain unaffected.

X. Compensation

  1. Claims for damages or claims for reimbursement of expenses of the Purchaser due to breach of duties arising from the contractual or statutory obligation with the Supplier shall be excluded.
  2. The exclusion of liability of clause X, 1 shall not apply in the following cases:
    1. if the Supplier or a legal representative or vicarious agent of the Supplier violates the obligation intentionally or by gross negligence,
    2. if the Purchaser claims compensation for damages or expenses arising from the negligent or intentional injury to life, body or health,
    3. if the Purchaser claims compensation for damages or expenses arising from the negligent or intentional breach of material contractual obligations,
    4. if and to the extent that the Supplier is subject to mandatory liability on a statutory basis.
  3. In the case of Clause X, 2.3. the Supplier shall only be obliged to compensate for damages or expenses which are typical for the contract and foreseeable.
  4. A change in the burden of proof shall not occur as a result of the above provisions.

XI. Documents, Confidentiality

  1. Documents, such as illustrations, plans, sketches, drawings, descriptions, weight, performance and dimension specifications, calculations, etc., which are made available to the purchaser by Gremco GmbH when submitting the offer or in connection with the execution of the contract, are and shall remain the property of Gremco GmbH. They shall be treated as strictly confidential and may not be made accessible to third parties.
  2. The purchaser may not use the documents and information provided to him for any purpose other than that provided for in the contract. Any use for non-contractual purposes shall require the written consent of Gremco GmbH. The Purchaser shall be liable for any improper or illegal use and shall also assume liability for its employees, staff, subcontractors or customers.

XII. Industrial property rights, copyrights

  1. If third parties assert justified claims against the purchaser due to infringement of an industrial property right or copyright by items delivered by Gremco GmbH and used in accordance with the contract, the following shall apply in addition to Clauses IX and X:
    1. Gremco GmbH shall, as supplementary performance, at its own expense either modify the delivered item in such a way that the third party’s property right is no longer infringed or procure a license from the owner of the property right or deliver a replacement item. If this is not possible for Gremco GmbH under reasonable conditions and within a reasonable period of time, the buyer shall be entitled to withdraw from the contract or to reduce the purchase price. The purchaser shall only be entitled to claims for damages under the conditions and to the extent stipulated in clauses IX and X.
    2. The obligations of Gremco GmbH regulated under lit. a) shall only exist if the purchaser immediately notifies Gremco GmbH in writing of the asserted claims of third parties, at the latest within 10 days from receipt of the warning of property rights, does not acknowledge an infringement vis-à-vis the third party and all defensive measures and settlement negotiations remain reserved to Gremco GmbH.
  2. Claims of the buyer shall be excluded if and to the extent the buyer is responsible for the infringement of the property right. Claims of the buyer shall also be excluded if and to the extent that the infringement of the property right is caused by special specifications of the buyer, by an application not foreseeable by Gremco GmbH or by the fact that the object in question is modified by the buyer or used together with objects not supplied by Gremco GmbH.

XIII. Product Information
Information provided by Gremco GmbH regarding the function and use of items shall, in the absence of any agreement to the contrary, be deemed to be general guidelines only. Since the products of Gremco GmbH have a wide range of applications and can be used in very different ways, it is incumbent upon the buyer to carefully test the items himself and to determine their suitability for the intended purpose in his own tests. As a rule, Gremco GmbH can only support the purchaser in this in terms of application technology.

XIV. Place of performance, applicable law, place of jurisdiction

  1. Place of performance for all obligations arising from the business relationship or an individual contract shall be Augsburg, unless expressly agreed otherwise.
  2. The contracts between Gremco GmbH and the buyer shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  3. Place of jurisdiction shall be Augsburg. Gremco GmbH may also bring an action against the buyer at the buyer’s general place of jurisdiction. This shall also apply to disputes in proceedings concerning documents, bills of exchange or cheques.

Commercial Register for Augsburg HRB 13377 Managing Directors: Nikolas Langes, Simon Specka As of: July 2020

Only the German version of the General Terms and Conditions is legally binding. The English version is for information purposes only. See German version here.