General Terms and Conditions of Sale and Delivery of HG GRIMME SysTech GmbH
General terms and conditions of sale and delivery
The following terms and conditions are the contractual basis of our current and future business relationships with our customers, insofar as they are entrepreneurs or legal entities (including public law) in accordance with § 14 BGB. They shall become part of the contract upon acceptance of the contractual offer (order) by us and shall also apply to future business with the customer. The customer’s own terms and conditions shall not be recognized unless we expressly agree to them in writing. This shall also apply with regard to deviating terms and conditions of our customers, even if we do not expressly object to them or perform deliveries or services without reservation in their knowledge.
1. Conclusion of contract
Our offers, orders as well as verbal commitments by representatives or vendors shall only become binding after written confirmation by us. Offers and orders from customers require written acceptance by us. However, in case of immediate delivery or service provision by us, the written order confirmation can be replaced by our invoice.
In case of orders placed via the online store of HG Grimme Service GmbH & Co KG, the conclusion of the contract shall be governed by the General Terms and Conditions there.
Our offers are always subject to change. Illustrations, descriptions, dimensions or weights in brochures or similar documents are non-binding, unless they have been expressly designated as binding by us in writing. Warranty agreements shall only come into effect if they are expressly designated as such in the offer or the order confirmation, naming the warranty obligations in detail.
The written order confirmation shall be decisive for the scope of deliveries and services. We reserve our property rights, copyrights and other industrial property rights to all illustrations, calculations, drawings and other documents. The customer may only pass these on to third parties with our written consent, irrespective of whether we have marked them as confidential.
Unless otherwise expressly agreed in writing, agreed prices shall apply ex our distribution warehouse excluding value added tax, shipping and, if applicable, assembly costs, which are not part of the pure value of the goods and are usually shown separately.
They are calculated on the basis of our prices valid on the day of delivery. Our price list shall apply to travel costs. The customer shall pay the statutory value added tax in addition to the agreed prices. If freight costs, insurance costs, public charges (such as customs duties, import or export fees, etc.) or other charges are newly introduced or increased after conclusion of the transaction, we shall be entitled to add such additional charges to the agreed purchase price, even in the case of freight-free or duty-paid delivery.
3. Delivery and delay
We shall endeavor to meet scheduled dates for deliveries and performance of services. However, information on delivery and performance periods or dates shall only be considered approximate guide times and shall only be binding if confirmed by us in writing. Claims of the customer due to delay always require a written reminder by the customer, even if the delivery or performance date is specified in calendar terms. Delay shall not occur as long as the customer is in default with the fulfillment of his obligation or as long as a delivery or service is delayed due to disruptions of the operational process, failure or delay of deliveries or services of our suppliers or transport companies, official orders, such as import or export restrictions or due to force majeure (e.g. war, strike, fire, etc.). In addition to our delivery or service, the customer may only demand compensation for damages caused by delay if we are guilty of intent or gross negligence. Liability for slight negligence is excluded.
In the event of default, the customer may set us a reasonable grace period, which must be at least two weeks. After unsuccessful expiration of the grace period, the customer may withdraw from the contract by written declaration. The customer may only claim damages for non-performance if we are guilty of intent or gross negligence. Liability for slight negligence is excluded. Our liability is limited to the foreseeable, typically occurring damage if the delay in deliveries or services is not due to an intentional breach of contract for which we are responsible.
We are entitled to make partial deliveries insofar as this is objectively and economically reasonable for the customer.
4. Shipment, transfer of risk, acceptance
Loading and shipment shall take place uninsured at the risk of the purchaser. Upon handover of the goods to the customer, forwarding agent, carrier or any other person designated to carry out the shipment, the risk shall pass to the customer – even in the case of fob, cif or similar shipment clauses. If the goods have been notified as ready for dispatch and if dispatch is delayed as a result of circumstances for which we are not responsible, we shall be entitled, but not obliged, to take all measures deemed appropriate to preserve the goods at the expense and risk of the customer. If the shipment is delayed due to circumstances for which the customer is responsible, or if the customer does not accept deliveries in due time (default of acceptance), we shall be entitled, after setting a grace period of two weeks, to choose between selling the goods on the open market at the customer’s expense and risk, which shall not affect the obligation to pay the purchase price immediately, or to withdraw from the contract and claim damages for non-performance.
Work carried out by us is to be accepted by the customer. Acceptance shall be deemed to have taken place if the customer does not accept services ready for acceptance within a period of two weeks after being requested to do so by us. Without setting a deadline, services ready for acceptance shall be deemed to have been accepted three weeks after their completion.
5. Terms of payment, default of payment
Our prices are due for payment as net prices plus the respective statutory value added tax without deduction immediately upon receipt of the invoice by the customer, insofar as no other term of payment results from the order confirmation or invoice. A cash discount deduction is only permissible with a separate written agreement between us and the customer. Unless another payment term has been agreed, we shall be entitled to charge the customer interest and commission in accordance with the respective bank rates for short-term loans after the expiry of 30 days from the invoice date without a reminder, but at least interest in the amount of 9 percentage points above the respective base interest rate. All claims shall become due immediately (irrespective of the term of any bills of exchange accepted and credited, agreed payment terms or deferrals) if the terms of payment are not complied with by the customer or circumstances become known which are likely to materially impair the customer’s creditworthiness. In such cases, we shall also be entitled to withhold our delivery or service until the counter-performance has been effected or security has been provided by the customer. Bills of exchange shall only be accepted on account of payment and to the exclusion of our liability for the timeliness and correctness of presentation and protest and only if they are discountable and properly taxed and if their acceptance has been expressly agreed. Bill charges and expenses shall be borne by the customer.
6. Exclusion of set-off and rights of retention
Rights of retention of the customer or offsetting by the customer with counterclaims, even if such counterclaims are not based on the same contractual relationship, are excluded unless the counterclaims are undisputed or have been legally established.
7. Import and export business
In the case of import and export transactions, we are entitled to withdraw from the contract if the necessary official permits are not granted to us or our suppliers or if the execution of the contract is or becomes impossible due to official prohibitions. The customer cannot derive any claims against us from this.
8. Claim in case of defects
Unless otherwise agreed, the customer’s rights in the event of defects shall be governed exclusively by the following provisions:
We warrant that the products delivered by us are not defective in accordance with the respective state of the art at the time of delivery, which are demonstrably based on manufacturing or material defects. In the case of new parts as well as exchange parts (used and reconditioned), the state of the art at the time of production of the respective part shall be taken into account in this respect. Changes in design or execution which we generally make to a product prior to delivery of an order do not entitle the customer to make a complaint.
In the case of products supplied by us, noticeable defects must be notified in writing without delay, at the latest within one week of receipt of the goods, and all other defects without delay, at the latest within one week of their discovery. These deadlines are preclusive deadlines, i.e. claims for defects on the part of the customer shall only exist if the customer has complied with its obligation to give notice of defects pursuant to § 377 of the German Commercial Code (HGB). With the complaint of defects, the inspection documents enclosed with the goods are to be handed over to us or to the representative named by us at the same time.
In the case of work carried out by us, noticeable defects must be reported in writing within a preclusive period of two weeks after the work has been carried out at the latest. All other defects within a period of two weeks after detection: this period is not a preclusive period and does not affect statutory limitation provisions.
In case of delivery of parts, the warranty is limited to the material. Claims for damages for assembly and/or personnel costs or loss of personnel are excluded.
Insofar as a defect exists, we shall be entitled, at our discretion, to make a replacement delivery (subsequent performance) or to remedy the defect, either by a company authorized by us or by ourselves. In agreement with the customer, the repair may also be carried out by the customer himself by us providing the customer with the parts necessary to remedy the defect and paying him a lump sum, the amount of which is to be agreed in advance, for the work required to remedy the defect. With the delivery of the necessary parts and payment of the agreed lump sum, all claims of the customer due to the defect shall be settled. In the event of rectification of the defect, we shall bear the necessary expenses insofar as these are not increased by the fact that the subject matter of the contract is located at a place other than the contractually agreed place of delivery.
The customer’s right to withdraw from the contract or reduce the purchase price shall be excluded unless the defect cannot be remedied or further attempts to remedy the defect are unreasonable for the customer.
Unless otherwise agreed, the limitation period for claims for defects shall be one year from the transfer of risk or acceptance, in the case of exchange parts six months from delivery, unless the defect has been fraudulently concealed by us or claims in tort are asserted. This shall also apply to claims for compensation for consequential damage caused by a defect.
Replaced products or parts replaced to remedy defects shall become our property and shall be returned to us.
We shall not be liable for defects caused by unsuitable or improper use or assembly, commissioning, maintenance, repair work or modifications of the products by the customer or third parties not commissioned or authorized by us. This also applies with regard to the software. We shall not be liable for defects caused by inadequate structural conditions, lack of maintenance, normal wear and tear, use of unsuitable operating materials or replacement materials, mechanical, chemical, thermal or electrical effects.
Subsequent performance shall take place without recognition of legal obligation and precedent in this respect and shall not lead to a new start of the limitation period. This also applies to the replacement of parts within the scope of subsequent improvement.
If, after examination of complaints raised by the customer, it turns out that there is no defect or that no claim for defects exists, the customer shall bear the costs incurred by the examination.
Liability for defects shall be excluded for products delivered in used condition, not overhauled, unless expressly agreed otherwise or we are guilty of fraudulent conduct.
Unless other provisions have been made in the above provisions, the customer may only claim damages, irrespective of the legal grounds, if we are guilty of intent or gross negligence. Any liability for damage caused by slight negligence shall be excluded, unless it is damage caused by culpable breach of a material contractual obligation within the meaning of Section 307 (2) No. 2 of the German Civil Code (BGB) or culpably caused damage to life, limb or health. The exclusion of liability also applies to personal liability of our legal representatives and employees.
If we are liable under the above provisions, our liability for damages shall be limited to the foreseeable, typically occurring damage, unless we, our legal representatives or our vicarious agents have acted intentionally. However, we shall only be liable for damage based on the absence of a guaranteed quality or durability, but which does not occur directly in our products, if the risk of such damage is obviously covered by the guarantee of quality and durability. Any further liability shall be excluded irrespective of the legal nature of the asserted claim. This applies in particular to tortious claims or claims for reimbursement of futile expenses instead of performance.
Claims for damages by the customer due to a defect shall become time-barred one year after delivery of the goods. If we, our legal representatives or our vicarious agents are responsible for injury to life, limb or health, or if we or our legal representatives have acted with intent or gross negligence, or if our ordinary vicarious agents have acted with intent, the statutory limitation periods shall apply to the customer’s claims for damages. The statutory liability under the Product Liability Act shall remain unaffected by the above exclusions of liability.
10. Reservation of ownership
All goods delivered by us shall remain our property (reserved goods) until all claims arising from the business relationship with the customer have been satisfied, and in accordance with the following provisions:
The customer is entitled to combine our products with other products within the scope of his ordinary business operations. We shall acquire co-ownership of the items resulting from the combination as security for our rights mentioned above, which the customer hereby assigns to us. The customer shall store the items subject to our co-ownership free of charge. The amount of our co-ownership share shall be determined by the ratio of the value of our product and the object created by the combination.
The customer may sell the goods subject to retention of title only in the ordinary course of business, under his normal terms and conditions of business and only as long as he is not in default with the performance of his obligations towards us, provided, however, that the claims arising from the resale shall pass to us in accordance with the following provisions. The customer shall not be entitled to dispose of the reserved goods in any other way. The customer’s claims arising from the resale of the reserved goods are hereby assigned to us. They shall serve as security to the same extent as the reserved goods. If the reserved goods are sold by the customer together with other goods not purchased from us, the assignment of the claim from the resale shall only apply to the amount of the invoice for the reserved goods purchased by us in each case. The customer shall be entitled to collect the assigned claims as long as we have not revoked this authorization. The authorization to collect shall expire without express revocation if the customer ceases to make payments. At our request, the customer shall be obliged to inform his customers immediately of the assignment to us, unless we do so ourselves, and to provide us with the information and documents required for collection. The customer must inform us immediately in writing of any access by third parties to goods subject to retention of title or claims assigned to us. In the event that the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the goods subject to retention of title. If we make use of this right, this shall only constitute a withdrawal from the contract, irrespective of other mandatory legal provisions, if we expressly declare this.
If the above security arrangements are invalid under the law of the country in which the goods delivered by us are located, any other security measure permissible under local law which leads to a corresponding security result for us shall be deemed to have been agreed. If the customer’s cooperation is required for this purpose, he shall take all measures necessary to establish and maintain such security interests under the applicable law. If the value of the securities existing for us in accordance with the above provisions exceeds the secured claims by more than 10% in total, we shall be obliged to release securities of our choice to this extent at the customer’s request.
11. Acquisition of customer data
Our accounting is managed via a computer system. In this context, we store business-related customer data.
12. Place of performance, place of jurisdiction, application of law
Place of performance and decisive for the place of jurisdiction for deliveries and payments (including actions on checks and bills of exchange) as well as all disputes arising between us and the customer from the entire business relationship is our registered office. However, we are also entitled to sue the customer at his place of residence and/or business.
All legal relations and legal acts in the relationship between us and the customer shall be governed exclusively by German law to the exclusion of any referrals under German private international law. The application of the uniform laws on the international purchase according to the Hague Conventions and the Vienna UN Convention – UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
Insofar as one or more of the above provisions should be or become invalid, this shall not affect the validity of the remaining provisions. To this extent, the parties undertake to replace invalid provisions with valid provisions that come as close as possible to the invalid provisions in terms of their economic sense and purpose.