1.1 The General Terms and Conditions of Sale and Delivery of Gollmer & Hummel (herinafter referred to as „G&H“) shall apply exclusively. Any conflicting or deviating terms and/or conditions of G&H contractual partner (hereinafter referred to as „Purchaser“) shall not be acknowledged, unless G&H expressly accepts any conditions deviating herefrom in writing. The present Terms and Conditions of Sale and Delivery shall also apply in the event that G&H performs a delivery to Purchaser without reservation and in knowledge of any conflicting or deviating terms and conditions of Purchaser.
1.2 These Terms and Conditions of Sale and Delivery shall also apply to all future transactions with Purchaser.
1.3 All agreements entered into between G&H and Purchaser in executing this contract are to be set out in writing.
1.4 These Terms and Conditions for Sale and Delivery apply only to business enterprises (as defined in Para. 14 German Civil Code), public-law legal entities and public law special entity.
2 Conclusion of contract
2.1 Quotations made by G&H shall be non-binding, unless they are expressly named as binding or contain a period of acceptance. G&H reserves the right to delist products, exclude products from delivery and to price changes. For the scope of the delivery obligation of G&H, the order confirmation ist applicable. Oral agreements become binding after confirmed in writing.
2.2 Paperwork, drawings, weights and measurements, patterns etc. are only approximations an do not mean a quality agreement cuncluded. G&H in entiteled to deviate from aformentioned descriptions as long as the deviation is neither fundamental nor the purpose oft the contract is jeopardised.
2.3 Insofar as G&H manufactures parts according to customer requirements, drawings prepared by G&H and approved by the purchaser, shall be material. Daviations from approved drawings shall be subject to a seperate agreement and possible additional expenses for such deviations shall be remunerated.
3 Industrial Property Rights
3.1 G&H reserves the ownwership of and copyright to all illustrations, drawings, calculations and further documentation. This is particullary valid for documents marked as „confidential“. Such documentation may only be made accessible to thrid parties with prior written consent of G&H.
3.2 Illustrations, drawings, calculations and further documentation are to give back immediately on first request if G&H rejects the offer or the contractual relationship ends for other reasons.
3.3 Should deliveries be based on drawings or other details made by purchaser and should this result in the assertation of industrial property rights by third parties, the purchaser shall indemnify G&H internally of all clains.
4 Delivery/Period of Delivery/Delayed Performance
4.1 Delivery deadlines and delivery dates schall be deemed agreed and binding, if they are expressly agreed in the quotation in writing. Delivery deadlines and delivery dates are non-binding for G&H, if the Purchaser does not fulfill his obligations in time (payment of instalements, presentation of necessary documentation e.t.c.). G&H reserves itself the right to plead non-performance on the contract.
4.2 Delivery deadlines commence on the first day the contract has been concluded in writing, at the eraliest.
4.3 If Pruchaser requests changes, G&H shall not obliged to observe the delivery deadline or date.
4.4 The deadlines shall be deemed observed if, until its expiry, the delivery item has left the work of G&H or G&H has notified its readiness for shipment.
4.5 Purchaser shall not be entitled to assert any claims für delays in delivery which are not attributable to intent of gross negligence on behalf of G&H. This shall particularyly apply to delays in delivery attributable to force major. In such cases, the delivery deadline agreed on upon respectively shall be extended accordingly the duration of the obstacle to delivery.
4.6 Return consignments are only allowed with prior express consent of G&H. The respective sent back goods has to be in oroginal packaging and in perfect resaleable conditions. Returns shall be carried out freight prepaid and at returner’s risk. A redeption feee of 15% will be charched. Processing fees will be charched as per expense (e.g. transcoding, cleaning or repackaging).
4.7 If the Purchaser is in default of acceptance or if he fails to perfom an act of cooperation, G&H is entiteld to claim any resulting damages, including additional damages, if any. G&H is entiteled to set the customer an appropriate time limit for acceptance and after expiry of such without result to withdraw from the contract and claim damages.
5 Transfer of Risk/Packaging
5.1 The risk of accidential loss or accidential deterioration of the delivered goods shall be transferred to Purchaser at he latest upon handover of the delivery item (hereby the start of the goods issue is decisive) to the freight forwarder, freight carrier or by dispatch of the good. This shall also aplly in the case of partial deliveries, insofar as a complete delivery of the entire ordered goods is not possible in time for reasons beyond G&H’s control.
5.2 Deliveries are made „ex-works“. G&H is only obliged to insure the goods against insurable risks at the explicit written request of the Purchaser
5.3 Transport- and other packaging in accordance with the Packaging Ordinance shall not be accepted; Except pallets. The Purchaser is obliged to procure the disposal of the packaging at his own expense.
6 Prices and Terms of Payment
6.1 Unless otherwise stated or implied in the order confirmation, the prices specified therein shall be „ex-works“, excluding packaging; this shall be billed separately.
6.2 Prices shall be net; statutory VAT is added in the amount apllicable and will be shown seperaterly on the invoice.
6.3 In the absence of any seperate agreements, claims arising from the contract shall be due as follows:
Payments must be made within 30 days of the invoice date without deduction. Cash discount shall only be deemed agreed on G&H’s explicit written confirmation. G&H reserves the right to supply new customers with advance payment or surname only.
6.4 G&H shall be entitled, even in the face of contradicting payment conditions by Purchaser, to initially credit any payment to the oldest, unpaid dept. Should costs or interest have already accrued, G&H shall be entitled to credit payments first to the costs, then to the interest and finally to the principal demand.
6.5 Purchaser shall only be entitled to the right to offset if and only insofar as ist counterclaims have been legally asserted, are undisputed or have been acknowledged in writing by G&H. Purchaser’s right to lien shall be limited to claims arising from the contractual relationship.
6.6 G&H shall be entitled to demand default interest of 9% above the base rate pursuant to § 247 BGB (German Civil Code)
7 Retention of Title
7.1 G&H retains property of all delivered goods until receipt of all payments from the delivery contract, including the future ones. In case of breach of contract, in particular in the event of delay in payment, G&H ist entitled to reclaim the purchased item.
7.2 Purchaser undetakes to treat the delivered goods with due care. He is obliged to insure the delivered goods during the period of retention of title at a reasonable cost against any form of loss at the new value.
7.3 Costs for maintenance and inspection work are to be borne by the customer during the retention of title, even if these are carried out by G&H.
7.4 In the event of levy of execution or other interferences of third parties, Purchaser must immediately notify G&H thereof in writing, in order for G&H to file third-party action against execution. Insofar as the third party is unable to reimburse the court and out-of-court costs of such legal proceedings, Purchaser shall be held liable.
7.5 The Purchaser is entitled to resell the purchase items in the ordinary course of business. However, the Purchaser now assigns to G&H all claims in the amount of the final invoice amount (including VAT) of the claim of G&H arising from the resale against his customers or third parties irrespective of whether the purchased goods continue to be processed without or after processing was sold. The Purchaser shall remain entitled to collect the claim even after delivery. The right of G&H to collect the claim itseld remains uneffected. However, G&H undertakes not to collect the receivables as long as the customer complies with his payment obligations arising from the receipt received, is not in default with payment, and in particular, no application for the opening of insolvency proceedings is lodged or payment is not settled.
7.6 If the goods delivered are inseperably mixed or combined with other items not belonging to G&H, G&H shall be co-owner of the new or combindes item at the ratio of the value of the goods supplied (final invoice amount including VAT) at the time of mixing and/or compounding. The Purchaser shall store the resulting sole or co-ownership for G&H.
7.7 By reimbursement of costs or shares of costs for tools, the Purchaser shall not acquire any property rights; they remain in the sole proprietorship of G&H.
8 Liability for Defests/General Liability
8.1 Unless agreed otherwise below, the statutory warranty rights according the German Civil Code apply.
8.2 G&H shall not be liable for any damages caused by misuse, inproper use, wear, storage or other actions by Purchaser or third parties. Statutory claims from liability for defects are struck by the statute for limitations within one year beginning with the delivery of the goods. This shall not apply in the case of § 438 Para. 1 no. 2 and § 634a Para. 1 no. 2 BGB (German Civil Code) and in the case of malicious concealment of a defect. The statutory limitation period applies here. A durability guarantee is not given herewith.
8.3 The purchaser is obliged to comply with his obligation to inspect the goods in accordance with § 377 HGB (German Commercial Code). G&H reserves the right to choose between supplementary performance and replacement delivery.
8.4 The expenses required for the purpose of supplementary performance shall not be borne by G&H insofar as expenses are increased by the fact that the goods have been delivered to a place other than the registered office of the Purchaser after delivery or has been installed at the end-customer. This shall not apply if the transfer corresponds to the intended use of the goods.
8.5 The purchaser's right of recourse against G&H on the grounds of such claims arising out of defects of quality, which are accepted by the purchaser from his customers, shall be excluded if the purchaser has not complied with his obligation to inspect and notify the defect, or the goods have been modified by processing. In addition, the recourse claims pursuant to § 478 BGB (German Civil Code), especially the statutory periods of prescription, shall remain unaffected.
8.6 G&H's liability under the statutory provisions for damages is unlimited if a breach of duty attributable to G&H is based on intent or gross negligence. If G&H attributable breach of duty is based on simple negligence and a material contractual obligation is culpably violated, the liability for damages shall be limited to the foreseeable damage which occurs in a typical manner in comparable cases. Moreover, liability is excluded.
8.7 The liability under the provisions of the Produkhaftungsrecht (Product Liability Act) remains unaffected. The liability for injury to life, body and health is also unaffected.
8.8 A change of the burden of proof at the expense of the Purchaser is not interlinked with the above regulations.
9 Prohibition of Assignment
All claims of the customer arising from the contractual relationship against G&H are not assignable.
10 Product Liability
10.1 Purchaser may only use the goods for their intended use and must ensure that the goods are only resold to persons with knowledge oft he product-danger and risks.
10.2 The customer is obligated to comply with his warning obligations when using the goods of G&H as a basic material and/or partial product of his own end-products when placing the end product on the market, even with regard to the goods delivered by G&H. However,, the Purchaser shall indemnify G&H from the assertion of claims in the event of violation of this obligation on first demand.
11 Data Protection
The customer agrees, that G&H stores, processes and exploits the customer data for the purposes of carrying out the order. For further information, please refer to the data protection regulations, which can be viewed at www.gollmer-hummel.net.
12.1 Place of performance shall be Straubenhardt.
12.2 Place of jurisdiction for all and any disputes arising under the present agreement shall be the competent court for Straubenhardt. G&H shall however be entiteled to bring an action against Purchaser at a court where Purchaser has ist general place of jurisdiction or where Purchaser has a branch office.
12.3 The present agreement shall be governed exclusivel by German law. The UN Sales Convention shall be unapplicable.
12.4 Insofar a clause of this agreement is void or ineffective, this shall not affect the remaining provisions. The parties will endeavor to replace the ineffective provision with an effective one which most closely corresponds to the economic purpose of the contract.
13 Interpretation/Leading Document
In the event of any diputes arising from or in relation to these terms and conditions or the contractual relationship, in particular regarding the interpretation, the German Version will prevail.