GENERAL TERMS AND CONDITIONS OF BUSINESS
General Terms and Conditions of Business of Gutekunst GmbH
§ 1 General provisions
- These General Terms and Conditions of Business (henceforth: GTCs) shall apply to all business relationships of Gutekunst GmbH, Uracher Straße 59, 72587 Römerstein- Zainingen (henceforth: Gutekunst or ‘we’) with its customers (henceforth: Customer).
- All deliveries and services as well as offers made by us shall be made on the exclusive basis of these GTCs. These GTCs thus also refer to all future business relationships, even if this is not expressly agreed again.
- If a framework agreement exists between Gutekunst and the Customer, these GTCs shall apply both to the framework agreement and to the individual contract.
- Our terms and conditions of business apply exclusively. General terms and conditions of business of the customer that are in conflict with the above GTCs or supplement these are not applicable and shall only be valid in so far as we have expressly agreed them in writing. This shall also apply if we perform services or deliveries without reservation or accept payments in the knowledge of deviating or supplementary terms and conditions of the customer.
- All contractually stipulated business relationships and also amendments, additions, sub-clauses or additional agreements made between us and the Customer for the purpose of executing a contract, are to be laid down in writing. They shall only be effective with written confirmation from us.
- These GTCs shall apply exclusively in business transactions with contractors. These GTCs shall not apply to transactions with consumers according to § 13 BGB (German Civil Code).
§ 2 Subject of the contract, offer and conclusion of the contract, defect of title
- The subject of the contract is, according to the content of the contract, the machining/finishing of items provided by the Customer.
- We shall submit an offer to the Customer. The nature and scope of the delivery shall be established according to contractual agreements, especially the order confirmation.
- Orders placed by the Customer are binding for the Customer. We shall be entitled to accept an offer submitted by the Customer by means of written order confirmation within ten working days of receipt of the offer by us.
- The Customer shall then receive from us a written order confirmation. The contract is concluded through our written order confirmation.
- The service owed under the contract is free of defects of title, provided that a third party cannot assert any claims against the Customer in this respect within the territory of the Federal Republic of Germany. Freedom from third party rights in relation to other states is owed by us only if we have confirmed this in writing.
§ 3 Rights to our documents, commitment of the Customer
- Offers, cost estimates and other documents submitted as part of the contract initiation process remain our property and may only be provided to third parties with prior written consent.
- All (copy)rights to samples, devices, tools, drawings, images, cost estimates, drafts and plans produced by us and/or provided to us, especially patents, copyrights and inventor rights are our exclusive property. They shall only be made accessible to third parties if we have expressly granted our written consent.
- If we give the aforementioned objects or documents to the Customer, this shall not constitute a transfer or grant of rights (usage licence) to the Customer
- The Customer shall ensure that documents provided to us do not infringe the rights of third parties. The Customer shall hereby guarantee that documents provided by it, especially drawings, plans etc. are accurate and are directly suitable for determining the service owed under the contract corresponds with the actual circumstances.
§ 4 Scope of service
- The specifically agreed scope of service shall result from our offer. In our offer, the services to be fulfilled shall be described as precisely and conclusively as possible and the expected service/delivery date is stated.
- Subsequent amendments or adaptations of the scope of service require written agreement. Additional services are to be agreed and remunerated separately.
- If technical regulations are to be included in the contract or if certain properties are to be specifically warranted, this shall require express written agreement. In particular, Gutekunst does not guarantee that its services are suitable for the use intended by the Customer. Technical and other advice given by Gutekunst both verbally and in writing, is fundamentally non-binding.
- If sampling is initially or solely commissioned (test run etc.), this shall be carried out as a chargeable service. Gutekunst does not herby provide any guarantee that the service is suitable for the Customer’s intended use.
- Partial services are generally permitted, in so far as these are reasonable for the Customer.
- We check on the delivery of the components to be processed only for such defects which are obvious on visual inspection, including delivery documents (e.g. transport damage, incorrect and short deliveries). The components themselves (with regard specifically to durability, contamination, damage etc.) are not checked by us on arrival. We take no responsibility for the defectiveness of the delivered components to be processed.
§ 5 Prices, payment conditions
- All prices are net and are subject to the applicable statutory value-added tax.
- All costs incurred, especially for processing of payment, freight, import and export duty, import ancillary charges and packaging, shall be borne by the Customer.
- Payments are due net within 30 days, unless otherwise agreed.
- Costs and risks of payment shall be borne by the Customer.
§ 6 Service period, force majeure
- Subject to deviating regulations in individual cases, any deadlines communicated for the provision of services are approximate and not binding.
- Compliance with an agreed deadline for fulfilment of services presupposes the prompt and defect-free delivery by the Customer of all components and documents to be provided by the Customer.
- Delivery to Gutekunst of the components to be processed shall be made at the risk and costs of the Customer. If the components to be processed are supplied by us at the request of the Customer, the Customer shall bear the transport risk. The Customer is free to insure the transport risk.
- A binding agreed deadline for fulfilment of services is to be complied with, if, in the case of agreed collection, we notify readiness for collection within the period or, in the case of agreed dispatch, the processed components are handed over to the party responsible for transport.
- If an agreed deadline for fulfilment of services is not complied with due to circumstances for which the Customer is responsible, e.g. because the components to be processed were not delivered in sufficient quantity or in due time, or have not been processed promptly or properly for other reasons (e.g. due to contamination, damage, inadequate packaging etc.), the deadlines shall be extended appropriately. Additional expense incurred by Gutekunst shall be borne by the Customer. Any further claims by Gutekunst remain unaffected.
- The deadline for fulfilment of services shall be extend appropriately in the event of force majeure. An exception to this shall be those cases for which the existence of a case of force majeure and its duration have no influence on the period of fulfilment of services. In evaluating the appropriate extension of the deadline for fulfilment of services, the duration of the impediment and a reasonable start-up period shall be taken into consideration. Unforeseeable events at the time of conclusion of the contract shall also be considered as force majeure, such as epidemics, pandemics, shortage of energy and raw materials, strikes, lockouts, official measures, terrorist attacks and war. We shall inform the Customer without delay regarding the existence of force majeure and also the expected termination of these circumstances. If the state of force majeure lasts more than three months without interruption, or if the date of delivery is extended by more than four months due to several circumstances of force majeure, both we and the Customer are entitled to withdraw from the contract. In the event of force majeure, the assertion of claims for damages and further claims shall be excluded; the obligation for counter-performance shall cease and any advance payments already made shall be refunded. Partial payments for services already fulfilled shall not be refunded. The provisions of this clause shall apply accordingly if the circumstances occur at a subcontractor’s and impact on our service.
- If an agreed deadline for fulfilment of services is not met due to circumstances for which we are not responsible, e.g. because we have not been supplied with the materials required for the fulfilment of services, or have not been supplied with them promptly or in the proper manner, despite congruent proper purchase, or due to the unforeseen failure of our production machines through no fault of our won, the deadlines shall be extended appropriately for fulfilment of services and, moreover, regulations shall apply respectively, according to Section 4, nos. 5-10.
- Compensation for damages as a result of non-compliance with the deadline for fulfilment of services shall be made according to § 10.
§ 7 Transfer of risk – Acceptance
- The risk of accidental loss or accidental deterioration of the processed components is transferred to the Customer when the components are ready for delivery at Gutekunst’s plant in Römerstein-Zainingen upon their agreed collection by the Customer, in the event of agreed dispatch by Gutekunst on handover to the party responsible for transport.
- Moreover, in the event of agreed dispatch, the risk is transferred to the Customer upon notification of readiness for dispatch, if dispatch is delayed for reasons for which the Customer is responsible. Also, the risk is transferred to the Customer if the latter is in default of acceptance.
- The Customer shall undertake to accept the work produced in accordance with the contract. Acceptance cannot be refused due to insignificant defects.
- Acceptance shall be deemed to have taken place if the Customer does not reject it within three working days of receipt of the processed components by indicating at least one defect.
§ 8 Obligations of the Customer
- The Customer shall guarantee that the components supplied by it and to be processed by Gutekunst are of the agreed quality and are suitable for the processing due. If Gutekunst incurs damage due to a defective component, the Customer shall be liable.
- The Customer is obliged to review Gutekunst’s service with regard to its suitability for the intended purpose of the Customer and also for the given operating conditions. We shall not be liable, irrespective of legal grounds, in so far as damage results from an infringement of the above-mentioned review obligations of the Customer.
§ Rights for defects
- Claims for warranty defects that are due to improper handling by the Customer or disregard of the instructions for use are excluded.
- Warranty claims are excluded, if they relate to materials supplied or provided by the Customer.
- Warranty claims are excluded, if they relate to information provided by the Customer, especially (deficits relating to) samples, drawings, measurements or plans. Claims are excluded due to the infringement of third-party property rights, if the infringements relate to the instruction of the Customer.
- Warranty claims for defects are excluded which relate to improper use by the Customer or to further defective processing of the goods.
- 5. We shall not be liable for functionality of the components for the intended purpose of the Customer and their possible uses.
- In so far as there is a defect for which we are responsible, we shall be entitled, at our discretion, to effect subsequent fulfilment by rectification (repair) or subsequent delivery (delivery of a defect-free product).
- The Customer shall give us an appropriate deadline to effect subsequent fulfilment..
- We shall bear the costs of subsequent fulfilment, provided that they are appropriate and necessary. We shall not bear additional expenses of subsequent fulfilment which are incurred by transport of products to a location other than the original location of use.
- Our right to wholly or partially refuse subsequent fulfilment if statutory requirements are met remains unaffected.
- Parts replaced within the context of subsequent fulfilment become our property and are to be handed over.
- Warranty claims due to defects – with the exception of claims for damages – are time-barred in derogation of § 634a Section 1 no. 1 BGB within twelve months of acceptance. This shall not apply in the event of fraudulently concealed defects or other urgent statutory regulations.
- Moreover, statutory rights for defects shall apply. Claims for damages shall be determined according to § 11.
§ 10 Liability
- We shall be liable in the event of culpable injury to health, life or limb according to statutory provisions.
- We shall be liable according to the provisions of applicable product liability legislation.
- We shall be liable for culpable infringement of material contractual obligations. Material contractual obligations are those which make the performance of the contract possible in the first place and with compliance with which the Customer may reasonably rely. In so far as we do not intentionally or grossly negligently infringe material contract obligations, liability shall be limited to foreseeable damage typical for the contract.
- We shall be liable for intentional and grossly negligent infringement of non-material contractual obligations.
- We shall be liable for breach of warranty in accordance with the written warranty declaration.
- Claims for damages on the part of the Customer in the event of liability due to intent shall be time barred according to statutory regulations. Moreover, claims for damages shall expire within twelve months of the statutory commencement of the limitation period.
- Moreover, liability shall be excluded.
- In so far as liability is excluded or limited according to the above sections, this shall also apply to the personal liability of our employees, representatives, bodies, sub-contractors and vicarious agents.
§ 11 Security rights
- Gutekunst is entitled to a statutory contractor’s right of lien on the components handed over for processing. In addition, we are entitled to a contractual right of lien for claims arising from the performance of services to the movable or repaired property of the Customer manufactured by us, if it has come into our possession on manufacture or for the purposes of repair.
- The contractual right of lien may also be asserted on account of claims from services previously performed, in so far as they are in conjunction with the subject of this contract.
- In so far as components processed for the Customer are delivered before full payment, in order to secure Gutekunst’s claims, the Customer shall transfer ownership of these components in advance to the value of Gutekunst’s claims and shall store the components free of charge for Gutekunst. This shall also apply to the Customer’s contingent right of ownership of such components which have been delivered to the Customer itself under retention of title. If the components are assigned to a third party as security, the Customer shall assign to Gutekunst its claims for restitution; the same shall apply to any claims on the part of the Customer from over-collateralisation against reserved and collateral owners.
- The Customer shall assign by way of security all claims to Gutekunst to which it is entitled against its Customers arising from a resale with or without processing of the components.
- In the event of the combination or mixing of collateral securities with other goods which do not belong to Gutekunst, the resulting co-ownership share in the new item shall be due to Gutekunst in proportion to the value of the collateral securities of the other processed goods at the time of combination or mixing.
- The Customer shall be authorised to resell the goods subject to retention of title in the ordinary course of business. Any other disposition, in particular a pledge, transfer of ownership or transfer by way of exchange, is not permitted. Gutekunst shall be promptly informed of pledges undertaken by third parties, also after processing, combination or mixing – and also anything else that impacts on the rights to the reserved goods. The Customer who accepts the assignment shall assign to us all claims against its customers from the resale of the goods subject to retention of title. In the event that the reserved goods of the Customer are resold together with other goods not in the possession of Gutekunst, the assignment of the claims from the resale shall only occur to the amount of the value of the reserved goods. If the claims arising from the resale of the goods reserved by the Customer are included in a current account relationship with its Customer, after balancing has been completed, the assigned current account receivable shall be replaced by the recognised balance which is assigned in the amount of the resale value of the reserved goods sold in each case. The Customer is authorised to collect the claims arising from the resale of the reserved goods. Gutekunst is entitled to revoke the authorisation for resale and/or collection of claims, if:
- The Customer is in default with payments arising from the business relationship;
- The Customer has disposed of the reserved goods outside the ordinary course of business; or
- After conclusion of the contract, a significant deterioration in the Customer’s ability to pay or creditworthiness becomes apparent, which puts at risk a claim by Gutekunst, in particular in the event of cessation of payments, an application for the opening of insolvency proceedings against the assets of the Customer or a seizure. After the revocation of the authorisation to collect claims, incoming assigned outstanding accounts are to be accumulated immediately by the Customer in a special account with the designation to be specified separately by us. After revocation of the authorisation to collect claims, the Customer must undertake, at the request of Gutekunst, to inform immediately in writing the debtors of the assigned claims and to indicate the assignment to the debtors.
- If the Customer is in default of its obligation to payment or infringes one of the obligations arising from reserved goods, we shall be entitled, subject to § 107 Section 2 InsO (German Insolvency Act), to demand the surrender of the reserved goods after withdrawing from the contract and to collect them from the Customer.
- Gutekunst shall undertake to release security rights on request of the Customer, in so far as their realisable value exceeds by 10% the respective total claim of the Customer to be secured.
§ 12 Set-off and right of retention
- The Customer is only entitled to offset claims that are undisputed or legally established.
- The Customer is only entitled to exert its right of retention in so far as it is an undisputed or legally established counterclaim
§ 13 Place of fulfilment and place of jurisdiction
- The place of fulfilment is Römerstein-Zainingen, Germany.
- If the Customer is a merchant, the courts with jurisdiction for Römerstein-Zainingen shall have exclusive jurisdiction.
- Moreover, we are entitled to bring an action against the Customer at its general place of jurisdiction.
- This contract is subject to German law excluding the provisions of the UN Sales Convention.
§ 14 Severability clause
- If one or more provisions of these Terms and Conditions or parts of a provision become ineffective, this ineffectiveness shall not affect the effectiveness of the other provisions or the contract as a whole.
- With regard to the case law of the German Federal Court, according to which a severability clause only leads to reversal of the burden of proof, it is, however, the express wish of the parties to maintain the effectiveness of the other provisions of these Terms and Conditions in all circumstances.
- Section 1 and 2 shall apply accordingly in the event of a regulatory omission.
GUTEKUNST GMBH – METALLBEARBEITUNG
Uracher Straße 59 | D-72587 Römerstein-Zainingen
Tel. +49 7382 9370-0 www.gutekunst-metall.de
Fax +49 7382 9370-50 email@example.com
Geschäftsführer: Philipp Egner
Head office: 72587 Römerstein-Zainingen
Entry in the Commercial Register of Stuttgart Local Court; HRB 361004