General Terms and Conditions of Sale and Delivery

1. General Provisions

 

1.1. These General Terms and Conditions of Sale and Delivery (hereinafter referred to as “GT&C”) shall apply from 01.05.2020 to all supply contracts of Grässlin GmbH (hereinafter referred to as “Supplier“).
1.2. These GT&C apply exclusively to entrepreneurs, legal entities under public law or special funds under public law. An entrepreneur is any natural or legal person or partnership with legal capacity who, when concluding the contract, acts in the exercise of his commercial or self-employed professional activity.
1.3. These GT&C apply to all offers and deliveries of the Supplier. They also apply to all future contracts with the Customer, even if they are not expressly agreed again.
1.4. Conflicting or deviating provisions in the terms and conditions of the Customer shall only apply if the Supplier expressly agrees to their validity in text form (e.g. in writing or by e-mail).
1.5. If provisions differing from individual terms of these GT&C are particularly agreed between the Supplier and the Customer, this shall not affect the validity of the remaining provisions of these GT&C.
1.6. Should individual provisions of these GT&C be or become wholly or partially invalid or void, this shall not affect the validity of the remaining provisions.

 

2. Offer, Acceptance of Order

 

2.1. The Supplier’s offer is non-binding.
2.2. The Supplier reserves the right to make changes and errors with regard to the illustrations and drawings relating to the goods in brochures, advertising materials and price lists as well as the data contained therein, e.g. regarding material, dimensions and form, unless such information is expressly designated as binding.
2.3. The Customer is bound to an order for two weeks after receipt by the Supplier.
2.4. The contract is only concluded when the Supplier sends an order confirmation in text form.

 

3. Documents of the Supplier and Secrecy

 

3.1. The Supplier reserves ownership rights and copyrights to illustrations, drawings, calculations and other documents. This applies in particular to written documents designated as “confidential“ (hereinafter “Confidential Information“).
3.2. The Customer is obliged to keep Confidential Information confidential even after termination of the contract. This does not apply to Confidential Information which is provably generally known or published at the time of disclosure, which belongs to general specialist knowledge, which is the general state of the art or which is known to the Customer individually; the Customer will inform the Supplier of such prior individual knowledge in text form without delay after disclosure.
3.3. The duty of confidentiality shall not apply if and as soon as the Confidential Information becomes generally known to the Customer by third parties after the time of disclosure without any action by a party violating the confidentiality agreement, without these third parties in turn violating a confidentiality obligation regarding the Confidential Information, being recognized or developed by the Customer independently and unaffected by the Confidential Information, is disclosed to the public in writing by the Supplier or has to be disclosed in accordance with mandatory legal provisions. In the latter case, the Customer will inform the Supplier of the disclosure obligation.
3.4. Except in the cases described under 3.3 above, any disclosure to third parties shall require the express prior consent of the Supplier in text form, unless this is absolutely necessary for the execution of the contract.

 

4. Framework Agreement and Call-offs


4.1. The Customer can agree with the Supplier on the delivery of a certain quantity on call-off (framework agreement).
4.2. The quantities ordered in the framework agreement are binding and must be completely called off by the Customer by the agreed date.
4.3. The goods ordered by the Customer in the framework agreement can be called off by

4.4. If an order volume has been agreed in the framework agreement, the Supplier shall inform the Customer without
delay of any reasons which prevent delivery of the corresponding quantities. If a call-off is higher than the last
forecast, the Supplier is not obliged to deliver the quantity exceeding the forecast in the agreed delivery period.
He will immediately inform the Customer of the expected delivery time of the non-delivered quantity.
4.5. In all other respects, these GT&C shall apply to deliveries on the basis of a framework agreement, unless
otherwise agreed between Supplier and Customer.

 

5. Price

 

5.1. The prices are EXW (Incoterms 2020) ex our warehouse in St. Georgen (Schwarzwald, Germany) - unless another
clause of Incoterms 2020 is agreed in the order confirmation - plus packaging costs and the applicable statutory
value added tax.
5.2. If EXW applies, delivery within the Federal Republic of Germany is carriage paid from an order value of € 250.00
net. In the case of a lower order value, the Supplier shall charge a flat-rate freight and packaging fee of € 8.50
plus the applicable statutory value-added tax.
5.3. For deliveries to Customers or destinations outside the Federal Republic of Germany, the agreed clause of
incoterms 2020 applies; if no special agreement has been made, EXW (Incoterms 2020) applies.

 

6. Terms of Payment


6.1. The invoice amount shall be due for payment to the Supplier immediately upon receipt of the goods and the
invoice.
6.2. For payments received by the Supplier within 14 days of the invoice date, the Supplier grants a discount of 2%.
However, any payment must be made by the due date stated on the invoice. Otherwise statutory regulations shall
apply.
6.3. The decisive factor for cash discount as well as default of payment is the timely crediting to the bank account
specified in the invoice.
6.4. If the Customer is a merchant under German trade law, the Supplier reserves the right to demand payment of the
statutory due interest after expiry of the discount period specified in Clause 6.2.
6.5. If the Customer is in default with a payment obligation in whole or in part, he shall - without prejudice to any other
rights of the Supplier - pay interest on arrears at a rate of 9 percentage points above the base rate of the European
Central Bank from start of default.
6.6. Offsetting against counterclaims is only permissible if these result from the same contractual relationship, have
been legally established or are undisputed.
6.7. The Customer shall only be entitled to withhold payments on the basis of effective and due counterclaims from
the same contractual relationship.

 

7. Retention of Title and Other Securities


7.1. The Supplier retains title to the goods until all - current and future - claims (including all ancillary claims such as
interest) arising from the business relationship with the Customer have been settled in full (hereinafter referred to
as „Reserved Goods“).
7.2. If the Reserved Goods are combined with other goods by the Customer, the Supplier shall be entitled to coownership
of the new object in the ratio of the invoice value of the Reserved Goods to the invoice value of the
other goods plus the processing value. If the Supplier’s ownership lapses due to combination, mixing, or
processing, the Customer shall already transfer to the Supplier at the time of combination, mixing or processing
the ownership rights to the new item to which it is entitled to the extent of the invoice value of the Reserved Goods
and shall store them for the Supplier free of charge. The ownership rights to which the Supplier is entitled as a
result of this shall be deemed to be Reserved Goods within the meaning of Clause 7.1.
7.3. The Customer shall be entitled to resell the Reserved Goods in the ordinary course of business.
7.4. The Customer hereby assigns to the Supplier the purchase price or other claims arising from the resale or further
processing or on any other legal grounds (e.g. claims arising of an insured event or in the event of unlawful acts
with regard to the Reserved Goods, including the acknowledged balance from a current account agreement) in the amount of the invoice value of the Reserved Goods; the Supplier accepts the assignment. The assignment of
claims pursuant to sentence 1 shall serve to secure all claims - including future claims - arising from the business
relationship with the Customer.
7.5. The Customer is entitled to collect claims from the resale for the Supplier in his own name until this right is revoked
by the Supplier. This authorisation to collect may only be revoked if the Customer does not properly meet his
payment obligations. In such a case and at the Supplier’s request, the Customer shall provide the information on
the assigned claims required for collection, make the corresponding documents available and notify the debtor of
the assignment.
7.6. In the event of seizure, confiscation, damage and/or loss of the Reserved Goods, the Customer shall notify the
Supplier immediately; a breach of this obligation shall entitle the Supplier to withdraw from the contract. The
Customer shall bear all costs which, in particular in the context of an action for third-party objection, had to be
incurred for the successful cancellation of a seizure and, if applicable, for the successful replacement of the
delivered items, insofar as they cannot be collected from such third parties.
7.7. The right to resell the Reserved Goods and to collect outstanding payments shall lapse upon cessation of
payments by the Customer, an application for the opening of insolvency proceedings against the assets of the
Customer or seizure of the Reserved Goods. Any payments received thereafter in respect of assigned claims
shall be collected immediately in a special account.
7.8. The Supplier undertakes to release the securities to which he is entitled at the request of the Customer to the
extent that the realisable value of its securities exceeds the claims to be secured by more than 10%; the selection
of the securities to be released shall be at the discretion of the Supplier.
7.9. If the Supplier has effectively withdrawn from the contract, it shall be entitled to take back the Reserved Goods if
it has warned the Customer that it will take them back within a reasonable period of time. The cost arising from
the exercise of the right of repossession, in particular for transport, shall be borne by the Customer. The Supplier
shall be entitled to utilise the repossessed Reserved Goods and to satisfy his claims from the proceeds thereof,
provided that the utilisation has been duly notified in advance. Should the proceeds exceed the outstanding claims
from the contractual relationship, this surplus shall be surrendered to the Customer.
7.10. If an expanded or extended retention of title pursuant to Clause 7.2 - 7.5 is not effective under the law of the place
where the Reserved Goods are located, the Customer shall not be entitled to resell or commercially use the
Reserved Goods unless he grants the Supplier another corresponding means of security and takes the necessary
actions for this purpose. The Purchaser shall also be obliged to provide such security if the law of the place where
the Reserved Goods are located does not recognise retention of title at all.

 

8. Time of Delivery, Delay


8.1. Information on delivery times shall always be non-binding unless expressly designated as binding.
8.2. Compliance with delivery periods shall be subject to the timely receipt of all documents to be supplied by the
Customer, necessary approvals and releases, in particular of plans, as well as the payment of an agreed down
payment and the fulfilment of other obligations by the Customer. If these conditions are not fulfilled in time, the
periods shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
8.3. The delivery period shall be deemed to have been met if the goods have left the warehouse by the end of the
delivery period or if the Customer has been notified that the goods are ready for dispatch.
8.4. If the Supplier is non-culpably unable to meet binding delivery times (non-availability of performance), he will
inform the Customer thereof without delay and at the same time inform the Customer of the expected new delivery
time. If the performance is also not available within the new delivery period, he shall be entitled to withdraw from
the contract in whole or in part; he shall immediately reimburse any consideration already paid by the Customer.
In particular, the non-availability of the performance in this sense shall be deemed to be the non-timely self-delivery
if the Supplier has concluded a congruent hedging transaction with his sub-Suppliers, if neither he nor his sub-
Supplier is at fault or if he is not obliged to procure the goods to be delivered in the individual case.
8.5. Force majeure or operational disruptions occurring at the Supplier’s or his sub-Suppliers’ business which
temporarily prevent the Supplier, through no fault of his own, from delivering the purchased goods on the agreed
date or within the agreed period shall change the dates and periods specified in Clauses 8.1 through 8.4 by the
duration of the disruptions to performance caused by these circumstances. If such disruptions lead to a delay in
performance of more than four months, the Customer may withdraw from the contract. Other rights of rescission
shall remain unaffected.
8.6. The occurrence of a delay in delivery shall be determined in accordance with the statutory provisions. In any case,
however, a notice of default with a reasonable deadline shall be required from the Customer.
8.7. At the Supplier’s request, the Customer shall be obliged to declare within a reasonable period of time whether he
will withdraw from the contract due to the delay in delivery or insist on delivery.
8.8. The Supplier’s liability in the event of delay in delivery shall be limited in accordance with Section Fehler!
Verweisquelle konnte nicht gefunden werden. below of these GT&C. Otherwise, the statutory rights of the
Customer and the Supplier shall remain unaffected, in particular in the event of exclusion of the obligation to
perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance).

 


9. Partial Deliveries, Partial Default, Partial Impossibility


9.1. Partial deliveries are permissible and can be invoiced independently as long as this is reasonable for the Customer
and the Customer has an objective interest in the partial delivery.
9.2. In the event of a partial default or a partial impossibility, the Customer may only withdraw from the entire contract
or demand damages for non-performance of the entire obligation if the partial performance of the contract is of no
interest to him.
9.3. In all other respects, the provisions of the above Section Fehler! Verweisquelle konnte nicht gefunden werden.
shall apply accordingly to partial default.

 


10. Transfer of Risk and Storage on Customer’s Behalf


10.1. EXW (Incoterms 2020) at the Supplier’s warehouse in St. Georgen (Black Forest) shall apply to delivery and
transfer of risk.
10.2. If dispatch is delayed as a result of circumstances for which the Supplier is not responsible or at the request of
the Customer, the risk shall pass to the Customer from the date of notification of readiness for dispatch; however,
the Supplier shall be obliged to take out the insurance requested by the Customer at the Customer’s request and
expense.
10.3. If dispatch or delivery is delayed by more than one month after notification of readiness for dispatch at the
Customer’s request, the Supplier may invoice the Customer for the storage costs incurred or, in the case of
storage in the Supplier’s own warehouse, for the storage costs customary at the location of the warehouse.

 

11. Return of Defect-free Goods


11.1. The Supplier shall take back goods free of defects within 30 days of the delivery date subject to the following
provisions of this Section Fehler! Verweisquelle konnte nicht gefunden werden.. With the express prior
consent of the Supplier or on the basis of any other agreement, the goods may be taken back at a later date.
11.2. A prerequisite for the return of defect-free goods is the intactness of the goods and the outer packaging as well
as the attachment of the delivery note or proof of purchase.
11.3. The Customer shall bear the costs and risk of the return shipment
11.4. If defect-free goods are returned, a service fee of € 10 per device will be charged. The service fee is plus statutory
value added tax.
11.5. The reimbursement of the purchase price minus the service fee is made immediately after examination of the
returned goods, at the latest within 30 days after receipt of the returned goods.

 

12. Defective Goods


12.1. The Customer shall inspect the goods immediately upon receipt and give notice of all recognisable defects in text
form without delay, but at the latest within seven working days (Saturday is not considered a working day);
otherwise the goods shall be deemed approved. Hidden defects must be reported in text form without delay after
discovery, at the latest after expiry of seven working days (Saturday is not considered a working day); otherwise
the goods shall also be deemed approved with regard to these hidden defects.
12.2. In the event of natural wear and tear or damage occurring after the transfer of risk as a result of faulty or negligent
handling, excessive strain, unsuitable equipment, defective construction work or due to special external influences
not anticipated under the contract, as well as non-reproducible software errors, these are not defects of the goods.
If improper modifications or repair work are carried out by the Customer or by third parties, no claims for defects
shall exist for these and the consequences arising therefrom either.
12.3. If defective goods are returned, proof of purchase or delivery must be presented.
12.4. If the goods are defective, the Supplier may, at its discretion, either deliver a defect-free item (replacement) as subsequent performance or credit the costs (credit note). Apart from this, the Customer shall be entitled to the statutory rights, namely reduction, rescission and, in the event of fault on the part of the Supplier and its vicarious agents, damages within the scope of Section Fehler! Verweisquelle konnte nicht gefunden werden. below.
12.5. The Customer shall give the Supplier the time and opportunity necessary for subsequent performance, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Customer shall return the defective goods to the Supplier in accordance with the statutory provisions.
12.6. Complaints about parts of a delivery shall not entitle the Customer to reject the remaining delivery unless the Customer is entitled to withdraw from the entire contract due to the defective partial performance.
12.7. Claims by the Customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded to the extent that such expenses increase because the goods have subsequently been transported to a location other than the Customer’s branch office, unless such transport corresponds to their intended use.
12.8. Claims arising from Supplier recourse (in particular for dismantling and installation costs) shall be governed by the law. Such claims shall be excluded if the defective goods have been further processed by the Customer or another entrepreneur, e.g. by installation in another product.
12.9. The Customer’s right of recourse against the Supplier shall only exist to the extent that the Customer has not entered into any agreements with its Customer which go beyond the statutory claims based on defects. Clause 12.7 shall apply accordingly.

 


13. IPR and Defects in Title


13.1. Unless otherwise agreed, the Supplier shall be obliged to provide the goods without infringement of industrial property rights and copyrights of third parties (hereinafter referred to as „IPR“) only in the country of the place of delivery. Insofar as a third party asserts justified claims against the Customer on account of the infringement of IPR according to sentence 1 above by deliveries made by the Supplier and used in accordance with the contract, the Supplier shall be liable to the Customer within the period specified in Section Fehler! Verweisquelle konnte nicht gefunden werden. as follows:
13.1.1. The Supplier shall, at its option and at its expense, either obtain a right of use for the deliveries concerned, modify them in such a way that the third party’s IPR is not infringed, or replace them. If this fails, the Customer shall be entitled to the statutory rights of rescission or reduction of the purchase price as well as damages within the scope of Section Fehler! Verweisquelle konnte nicht gefunden werden..
13.1.2. The aforementioned obligations of the Supplier shall only apply if the Customer immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement and leaves all defensive measures and settlement negotiations to the discretion of the Supplier. If the Customer ceases to use the Supplies in order to mitigate the damage or for other important reasons, he shall be obliged to inform the third party that the cessation of use does not constitute an acknowledgement of an infringement of IPR.
13.2. Claims of the Customer shall be excluded to the extent that he is responsible for the infringement of the IPR.
13.3. Claims of the Customer shall also be excluded if the infringement of the IPR is caused by special specifications of the Customer, by an application not foreseeable by the Supplier or by the goods being modified by the Customer or being used together with products not supplied by the Supplier.
13.4. In the event of infringements of IPR, the provisions of Section Fehler! Verweisquelle konnte nicht gefunden werden. shall apply mutatis mutandis to the claims of the Customer regulated in Clause 13.1.
13.5. In the event of other defects of title, the provisions of Section Fehler! Verweisquelle konnte nicht gefunden werden. shall apply mutatis mutandis.
13.6. Further claims of the Customer against the Supplier and its vicarious agents due to a defect of title or claims other than those regulated in this Clause Fehler! Verweisquelle konnte nicht gefunden werden. are excluded.

 

14. Limitation of Liability


14.1. The Supplier shall be liable without limitation for damages resulting from injury to life, body or health resulting from a negligent breach of duty by the Supplier or from a intentional or negligent breach of duty by its legal
representative or vicarious agent and in the case of statutory strict liability, in particular under the German Product Liability Act (Produkthaftungsgesetz) and in the case of guarantee liability.
14.2. The Supplier shall be liable for other damages resulting from an intentional or grossly negligent breach of duty by the Supplier or from an intentional or grossly negligent breach of duty by its legal representative or vicarious agent.
14.3. In the event of an intentional or negligent breach of an essential contractual obligation, the Supplier shall only be liable for foreseeable, typically occurring damage at the time of conclusion of the contract. An essential contractual obligation is such an obligation which enables the proper performance of the contract concluded with the Customer in the first place and on which the Customer has relied and may have relied and the culpable non-performance of which endangers the achievement of the purpose of the contract.
14.4. In all other cases the Supplier’s liability shall be excluded.
14.5. Insofar as the Supplier’s liability is excluded or limited, this shall also apply to its employees, representatives and vicarious agents.

 

15. Limitation Period


15.1. In the event of Supplier recourse in the supply chain of a consumer goods purchase, in the event of statutory strict liability, in particular under the German Product Liability Act (Produkthaftungsgesetz) and in the event of guarantee liability, the statutory limitation period shall apply.
15.2. In the case of damages resulting from injury to life, body or health which are based on a negligent breach of duty by the Supplier or an intentional or negligent breach of duty by his legal representative or vicarious agent, in the case of other damages, which are based on an intentional or grossly negligent breach of duty by the Supplier or on an intentional or grossly negligent breach of duty by his legal representative or vicarious agent, as well as in the case of damages which are based on an intentional or negligent breach of essential contractual obligations arising from the respective contract by the Supplier or his legal representative or vicarious agent, the statutory warranty period shall also apply.
15.3. In the case of a building and an object which has been used for a building in accordance with its usual use and which has caused its defectiveness, as well as in the case of a work whose success consists in the provision of planning or monitoring services for a building, the limitation period shall be five years.
15.4. In all other cases the limitation period shall be two years.

 

16. IP Rights to Documents of the Supplier, Software


16.1. The Supplier reserves its unrestricted rights of ownership and copyright exploitation to cost estimates, drawings and other documents (hereinafter referred to as „Documents“). The Documents may only be made accessible to third parties with the prior consent of the Supplier and must be returned to the Supplier immediately upon request if the order is not placed with the Supplier.
16.2. The provisions of Clause 16.1 shall apply mutatis mutandis to Documents of the Customer; these may, however, be made accessible to third parties to whom the Supplier has permissibly transferred delivery obligations.
16.3. The Customer shall have the non-exclusive right to use standard software supplied by the Supplier on a CD Rom and which must be installed on a PC of the Customer in unchanged form for use with the device purchased from the Supplier. The Customer may make a backup copy. The software may only be passed on together with the device purchased from the Supplier. In this case, the software shall be uninstalled or irretrievably deleted by the Customer.

 

17. Applicable Law and Place of Jurisdiction


17.1. German law shall apply to the legal relations between Supplier and Customer to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
17.2. If the Customer is a merchant, a legal entity under public law or a special fund under public law, the courts at the Supplier’s place of business in Singen shall have exclusive jurisdiction for all disputes arising from the business relationship. The same shall apply if the Customer does not have a general place of jurisdiction in Germany, moves his domicile or usual place of residence outside Germany after conclusion of the contract or his domicile or usual place of residence is not known at the time the action is filed. However, we shall also be entitled to sue the Customer at his general or special place of jurisdiction. However, the Supplier is also entitled to sue at the Customer’s place of business.

 

Version 3.0 – Stand 12.05.2020

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