General Terms and Conditions of Sale and Delivery
of Gann Mess- u. Regeltechnik GmbH, Schillerstr. 63, 70839 Gerlingen, Germany (hereinafter referred to as: "Gann")
governing the provision of services to commercial customers
1. Scope of Application, Definitions
1.1 The following General Terms and Conditions of Sale and De-livery (hereinafter: the "Terms and Conditions") shall apply to all deliveries of goods, provision of services and making of offers by Gann to any customer who is an entrepreneur within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), legal entities under public law or an asset under public law (hereinafter referred to as: the "Customer").
1.2 The Customer shall be deemed to be an entrepreneur within the meaning of Section 14 BGB where, in concluding the agreement in question, he/she/it is acting in a commercial or self-employed capacity. An entrepreneur may be an individual, a legal entity or a partnership with legal capacity.
1.3 These Terms and Conditions shall form part of any agreement concluded by Gann with any such Customer. They shall also apply to future deliveries of goods, provision of services and making of offers as between the parties, even where these are not the subject of separate agreements. Any divergent terms and conditions of the Customer which are not expressly acknowledged by Gann in writing shall not apply to the agreement in question. Even where Gann makes reference to or mention of a communication which contains the terms and conditions of the Customer or a third party, it shall not be deemed to have consented to the application of those terms and conditions.
2. Offers and Placing of Orders
2.1 An agreement shall come into being upon the placing of an order by the Customer (offer) and the acceptance by Gann of that order.
2.2 All offers made by Gann shall be subject to change without notice and shall not have any binding effect with regard to subsequent orders. It shall be the placing of the order by the Customer which shall be deemed to constitute the initial of-fer to enter into a contract. The acceptance by Gann of the Customer's offer shall be effected by means of the commu-nication of a written order confirmation or upon the dispatch of the goods in question. Any addenda, amendments or sub-sidiary agreements to the agreement must be in written form.
2.3 Unless they are expressly described as binding, any particu-lars provided by Gann with regard to the subject matter of the deliveries or performance to be effected (for example, weight, dimensions, value in use, load/resilience, tolerances and technical data) and any materials furnished by Gann, such as images, diagrams and performance data, shall be deemed to be merely of an approximate nature. They shall not constitute guaranteed characteristic attributes, rather descriptions or designations, of the goods or services in question. Any standard deviations or modifications resulting from legal provisions or reflecting technological advances and any replacement of components with equivalent parts shall be permissible to the extent that they do not impair the use of the goods or services in question for the contractually stipulated purpose.
3. Pricing and Payment
3.1 Unless the parties expressly stipulate otherwise, all of the prices specified by Gann in its price lists shall be ex works, Incoterms 2010, denominated in euro (EUR), plus the appli-cable statutory rate of VAT.
3.2 The prices shall not comprise transportation, packaging or insurance-related costs, or any fees incurred for the procurement and notarisation of special documents. Unless the parties expressly stipulate otherwise, these costs and fees shall be invoiced by Gann on a separate basis. In all other respects, the latest version of the INCOTERMS shall apply.
3.3 Gann shall be permitted to increase its prices in response to changes in pricing factors, the occurrence of which was not foreseeable for Gann at the time of the conclusion of the agreement. The amount of the price increase must be proportionate to the changes in the pricing factors. This shall not apply to stipulated delivery periods of up to 4 months in the context of non-commercial business transactions.
3.4 Unless the parties stipulate otherwise, any payments shall immediately fall due upon the conclusion of the agreement in question. Where the due date for payment is a calendar date, the Customer shall be deemed to be in default should he/she/it fail to effect payment by that date. In the case of payment by means of irrevocable letter of credit, the due date for payment shall be governed by the stipulated terms of that letter of credit. This shall also apply to deliveries effected on as cash for documents basis.
3.5 Cheques shall only be accepted on account and shall only constitute payment once the amount in question has been credited without reservation. Any bank charges and other out-of-pocket expenses shall be borne by the ordering party.
3.6 Should the Customer default on his payment obligation in whole or in part, he/she/it shall be obligated – without prejudice to any other rights of Gann – to pay Gann default interest in the amount of 9 % points above the base interest rate, unless Gann is able to establish that it has incurred interest-related loss in a greater amount.
3.7 The decisive factor for establishing whether a deadline for payment has been met shall be whether Gann is able to dispose of the amount owed within the specified deadline. Where the Customer does not stipulate that a payment is linked to a specific delivery of goods or performance of services, it shall be used to settle the Customer's longest-standing debt.
3.8 The Customer shall only be entitled to offset any counter-claims where these have been established in a legally binding manner or are uncontested. The Customer shall only be able to exercise a right of retention where his/her/its counterclaims are based on one and the same contractual relationship.
3.9 Should Gann belatedly become aware of any facts which cast doubt on the creditworthiness of the ordering party, or should the latter fail to meet its payment obligations arising in connection with its business relationship with Gann, Gann shall be entitled to immediately call in all outstanding claims. In this case, Gann shall furthermore be entitled to withdraw from any ongoing agreements, in whole or in part; it shall not be obligated to effect any further deliveries or may opt to make these subject to payment in advance or the furnishing of collateral.
4.1 Unless agreed upon otherwise in writing, the goods shall be delivered “Ex Works”, Incoterms 2010.
4.2 Delivery deadlines shall be governed by the stipulations agreed upon by the parties in writing. Unless Gann expressly confirms otherwise in writing, any delivery periods or delivery dates specified by it shall be non-binding. A delivery deadline shall be deemed to have been met where the goods to be delivered leave the factory or are declared to be ready for dispatch prior to the expiration of that deadline.
4.3 Gann shall not be liable for any delays in delivery which are due to a force majeure event or other unforeseeable and unusual circumstances beyond Gann's control (for example, strikes, lock-outs, disruption of operations, shortages of means of transportation, official measures, power shortages, etc.), or for any non-delivery or failure to effect correct or timely delivery by its suppliers, even where the parties have stipulated binding deadlines for delivery. In such a case, the deadlines for delivery or performance in question shall be extended by the period of the duration of the impeding event or circumstance plus a reasonable response time. Should any such event make it considerably more difficult or impossible for Gann to effect delivery of the goods or performance of the services, and should the impediment in question be of a not merely temporary nature, Gann shall be entitled to withdraw from the agreement, in whole or in part, on grounds of the partial non-performance thereof.
4.4 Should the Customer require changes to be made to the obligations to be performed pursuant to the agreement, or the performance of obligations not provided for in the agreement, the deadline for delivery shall be extended by the period of time which is necessary for the proper performance of the modified or additional obligations.
4.5 Should the Customer incur damage or loss as a result of a binding deadline for delivery having been exceeded, the amount of any compensation for delay to be paid by Gann shall be limited to a maximum of 10 % of the invoice value of the goods or services affected by the delay, except in cases of wilful intent or gross negligence.
4.6 Gann shall be permitted to effect partial deliveries of goods or partial performance of services where the Customer may reasonably be expected to accept these. The Customer may reasonably be expected to accept a partial delivery where, in particular, the Customer is able to use it for the intended purpose pursuant to the agreement. Should a partial delivery not instigated by the Customer result in additional delivery costs, these shall be borne by Gann.
5. Passing of Risk
5.1 The consignment risk, the costs relating to delivery, includ-ing any customs duties, import taxes or other charges, and the cost of any transportation insurance desired by the Cus-tomer shall be borne by the Customer.
5.2 The risk associated with the goods to be delivered shall pass to the Customer once they are handed over to the freight forwarder, carrier or other third party appointed to effect consignment. The relevant point in time in this regard shall be the time at which loading of the goods commences. This shall also apply in the case of partial deliveries or in the event that Gann undertakes to perform other obligations (for example, consignment, assembly or delivery by means of its own vehicles). Gann shall be entitled, but not obligated, to obtain insurance coverage against damage in transit for all deliveries at the Customer's expense.
5.3 Should the Customer so wish, Gann shall deliver the ordered products to the Customer's address as indicated in the order. Unless the parties stipulate otherwise, the delivery shall be effected by a suitable logistics company selected by Gann. In this case, the consignment risk, the costs relating to delivery, including any customs duties, import taxes or other charges, and the cost of any transportation insurance desired by the Customer shall also be borne by the Customer.
5.4 Where the transportation insurance is covered by Gann but no certificate of insurance has been issued, the settlement of any claims shall be incumbent upon Gann, provided that the Customer is in possession of the necessary papers in this regard (survey report, certification of the damage as detected by the transport company upon handover). Where an insurance certificate is issued and sent to the Customer by Gann, the former shall be responsible for settling any claims for damage in transit directly with the insurance company.
5.5 Should a consignment be delayed at the Customer's request or due to circumstances which are beyond the Customer's control, the risk associated with the goods to be delivered shall pass to the Customer as soon as they are ready for dispatch and Gann has notified the Customer accordingly.
5.6 Should there be a delay in the Customer's acceptance of delivery of the goods, should he/she/it fail to perform a necessary act of co-operation or should delivery be delayed for other reasons for which the Customer is responsible, Gann shall be entitled to claim compensation for any loss, including any additional expense (for example, storage costs), incurred by it as a result.
6. Retention of Title
6.1 The goods to be delivered shall remain the property of Gann until all claims arising out of this agreement and the business relationship between Gann and the Customer have been settled in full. This shall also apply in the event of the issuance of a confirmation of balances; the retention of title shall serve as collateral for the outstanding balance claim of Gann in question.
6.2 It is hereby stipulated that, should Customer process, merge or amalgamate the goods to be delivered with other goods or chattels, Gann shall retain joint title to the resultant product in proportion to the invoice value of the goods delivered by Gann as compared to the invoice value of the other component goods or chattels. Should Gann's title expire as a result of such merging or amalgamation of the delivered goods, the Customer hereby undertakes to transfer its title to the resultant product to Gann in proportion to the invoice value of the goods delivered by Gann. The Customer shall store the jointly owned product on a gratuitous basis.
6.3 The Customer shall be entitled to resell the goods to be delivered in the ordinary course of business. No pledging of the goods or transfers by way of collateral shall be permitted. The Customer must inform Gann of any seizure, confiscation or other disposal of the goods by third parties without delay. The Customer shall not, on any grounds whatsoever, be granted any right of retention and/or lien with regard to any of the documents, papers or materials provided to him/her it by Gann.
6.4 The Customer hereby assigns any and all claims arising out of the resale or incorporation of the goods to be delivered or on other legal grounds to Gann by way of collateral; in the case of shares of joint title pursuant to Section 6.2, the claims shall be assigned in proportion to the share of joint title in question. Where the Customer sells the goods to be delivered together with other goods not delivered by Gann, any claims arising out of the resale shall only be assigned in the amount of the remuneration agreed upon by Gann and the Customer. Gann hereby accepts the assignment.
6.5 The Customer may not enter into any agreements which would exclude or limit Gann's rights. The Customer shall be authorised to collect on the claims arising out of the resale of the goods to be delivered as long as he/she/it continues to meet its payment obligations vis-à-vis Gann. He/she/it shall be obligated, at Gann's request, to immediately inform the purchaser of the assignment to Gann and to provide Gann with the necessary information and papers for collecting on the claims.
6.6 Should the value of the collateral furnished to Gann exceed the amount of Gann's outstanding claims vis-à-vis the Customer by more than 20 % in total, Gann shall be obligated in this regard, at the Customer's request, to release some of the collateral at its (Gann's) discretion.
7.1 Unless stipulated otherwise in the following, Gann shall be liable for any material defects in accordance with the appli-cable statutory provisions.
7.2 Gann shall issue an additional warranty with regard to the condition of the goods to be delivered only where this is expressly stipulated by the parties in writing.
7.3 Should the Customer desire the goods to be used for a particular purpose or in a particular manner, he/she/it must inform Gann accordingly, and provide a precise description of the desired use or purpose, in writing upon placing the order. Gann shall not be liable for incorrect brochure information provided that this does not relate to mandatory characteristics of the goods which have been confirmed in writing, unless Gann itself is guilty of wilful intent or gross negligence.
7.4 Any warranty claims on the part of the Customer shall be contingent upon the latter having discharged his/her/its statutory duties with regard to inspection and notification of defects (Section 377 and Section 381 of the German Commercial Code (Handelsgesetzbuch – HGB). The Customer must carefully inspect the goods without delay upon his/her/its receipt thereof. The delivered goods shall be deemed to have been approved by the Customer where the latter does not notify Gann in writing of the existence of (i) evident defects (including in the case of incorrect or short deliveries) without delay upon his/her/its acceptance of the delivery, or (ii) a defect which was not evident upon the inspection duly carried out without delay upon delivery within five (5) working days of the discovery of the defect. Should the Customer fail to duly carry out an inspection and/or no-tify Gann of the existence of any defects, any liability on the part of Gann for the defects not notified to it shall be excluded. At Gann's request, the Customer must return any rejected goods to Gann with carriage paid. In the case of justified complaints, Gann shall bear the costs for the most favourably priced means of consignment; this shall not apply where the costs are higher because the delivered goods are at a location other than the location for their intended use.
7.5 Where the delivered goods are defective, Gann may opt to effect subsequent performance by way of rectification of the defect in question (subsequent improvement) or by way of delivery of non-defective goods (replacement delivery). This shall not affect Gann's right to refuse to effect subsequent performance where the conditions imposed by statute have been met. Any replaced parts shall become the property of Gann.
7.6 The issuance of a warranty shall be excluded in the case of defects resulting from the following: Inappropriate or improper use, incorrect assembly or commissioning by the Customer or third parties, incorrect or negligent handling, operation or maintenance, provision of incorrect information by the Customer when placing the order, non-compliance with manufacturers' instructions, use of unsuitable operating materials, substitute materials, faulty construction work, chemical, electro-chemical or electrical factors, provided that these are not attributable to any fault on the part of Gann. Parts which are subject to regular wear and tear (for example, batteries, cables, electrodes, etc.), which are damaged as a result of mechanical or chemical effects, shall be expressly excluded from warranty.
7.7 The Customer must give Gann sufficient time and opportuni-ty, as agreed upon by the parties, to carry out all improve-ments or effect any replacement deliveries which it reasonably considers to be necessary. Should the Customer culpably hinder Gann in its attempt to effect a permissible replacement delivery, he/she/it shall forfeit any further rights he/she/it may have in this regard. The Customer shall have no warranty claim where he/she/it, without Gann's consent, removes the originally existing serial number or modifies the delivered goods or permits third parties to do so. This does not apply, if the Customer proves, that the disputed defects have not been caused by the modifications carried out by him or the third party. In any case, the Customer shall bear any additional costs arising in connection with the rectification of the defect(s) as a result of such modification.
7.8 Subject to the following provisions in this subsection 7.8, the limitation period for all claims for defects shall be one (1) year from the start of the statutory limitation period. If Gann has intentionally misrepresented the defect by silence, the statutory limitation periods shall apply with respect to any claims for damages. Furthermore, the statutory limitation periods shall apply with respect to claims for damages due to defects, if Gann is liable for intent or gross negligence, or in the event of injury to life, body or health.
7.9 The Customer shall only be able to claim for damages in accordance with the provisions of Section 9.
8. Intellectual Property Rights and Defects of Title
8.1 Unless agreed upon otherwise, Gann shall only deliver products in the Federal Republic of Germany that are not infringing any intellectual property rights and copyrights of third parties. (hereinafter altogether referred to as “Intellectual Property Rights”). If a third party asserts any justified claims against the Customer based on the infringement of Intellectual Property Rights, concerning any correctly used deliveries by Gann, Gann shall be liable to the Customer according to the following provisions.
8.2 Gann will at its option and at its expense either obtain a right of use for the corresponding deliveries, change them in such a way that the Intellectual Property Rights are not infringed or will exchange them. If none of the above measures is feasible at reasonable conditions, the Customer shall have the statutory rights to withdraw from the contract or to reduce the contract price.
8.3 Gann’s obligation to pay damages is governed by section 9.
8.4 The aforementioned obligations shall only apply, if the Customer has immediately informed Gann about any such third party claims in writing, did not acknowledge an infringement and has reserved all defensive measures and settlement negotiations to Gann. If the Customer ceases to use the delivery due to reasons of minimising the damage or due to other reasons, the Customer shall inform the third party that the suspension of use does not represent any acknowledgement of an infringement of Intellectual Property Rights.
8.5 Any claims of the Customer are excluded if and to the extent that the Customer is responsible for the infringement of the Intellectual Property Rights.
8.6 Furthermore, any claims of the Customer are excluded insofar as the infringement of Intellectual Property Rights is caused by special requirements of the Customer, through any use which was not foreseeable or due to the fact that the delivery is changed by the Customer or used together with products which were not delivered by Gann.
8.7 In case of other defects in title, the provisions of section 7 shall apply accordingly.
8.8 Further or other claims of the Customer against Gann than those set out in this Section 8 and in Section 7 are excluded.
9.1 Regardless of the legal reason, Gann is only liable for damages (a) insofar as Gann, its legal representatives or vicarious agents are guilty of intent or gross negligence, (b) upon culpable violation of essential contractual obligations,(c) upon culpable injury to life, limb and health, (d) in the case of defects which Gann has fraudulently concealed or whose absence Gann has guaranteed, (e) insofar as, pursuant to product liability law for personal injury or property damage, there is liability for privately used items. Gann is not liable for further claims for damages.
9.2 An essential contractual obligation is a duty, the fulfilment of which enables the proper execution of the contract in the first place, and the compliance of which the contractual partner regularly trusts and should trust.
9.3 However, in the case of a slightly negligent breach of essential contractual obligations (excluding intent and gross negligence), Gann is only partially liable for the reasonably foreseeable damages typical for the contract.
9.4 The foreseeable damages typical for the contract must be determined in the amount of the contract value of the service concerned.
10. Papers, Data Storage
10.1 Any specimens, design documents or other papers supplied by Gann shall remain the property of Gann. Gann shall continue to hold all rights (copyrights, etc.) attached to these papers. They may not be made accessible to third parties or the subject of any publications without Gann's consent, and must be returned to the latter at its request should a potential order ultimately not be placed with Gann. The recipient of any such papers shall be liable for ensuring that they are used in a legitimate manner.
10.2 In the course of its implementation of contractual agreements, Gann collects and processes customer data which is necessary for the processing and carrying out of orders and stores this data on data carriers. This storage of data is solely for Gann's own purposes. Gann reserves the right to disseminate such data to third parties to the extent that this is necessary for the carrying out of the order in question and permissible pursuant to applicable law.
10.3 Gann shall be entitled to obtain information regarding the Customer from credit institutions, credit agencies or other credit information systems.
11. Responsibility for Disposal of Waste
11.1 The commercial importer of the goods delivered by Gann shall, in importing those goods, assume responsibility for the disposal of any related waste in accordance with the regulations in place in the country in which he/she/it operates. He/she/it shall be required to place any third parties acting in a commercial capacity to whom he/she/it distributes the delivered goods under a contractual obligation to properly dispose of the goods once they have been used at their own expense and in accordance with the relevant statutory provisions, and to ensure that they remain under such obligation in the event of a renewed distribution of such goods.
11.2 Should the commercial importer fail to place any third parties to whom he/she/it distributes the delivered goods under such an initial and, where applicable, a renewed contractual obligation to assume this responsibility to dispose of any related waste, he/she/it shall be obligated to take back the delivered goods once they have been used and to properly dispose of them at his/her/its own expense and in accordance with the relevant statutory provisions.
12. Applicable Law, Place of Performance, Place of Jurisdiction and Final Provisions
12.1 All disputes arising from contracts to which these Terms and Conditions apply and all disputes arising from the business relationship between Gann and the Customer shall exclusively be governed by the law of the Federal Republic of Germany. The rules of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and of the international private law shall not apply.
12.2 The place of performance for all obligations arising out of the contractual relationship between Gann and the Customer shall be the location of Gann's place of business, Gerlingen, Germany.
12.3 Unless mandatory statutory provisions stipulate otherwise, the place of exclusive jurisdiction for all disputes arising out of or in connection with the contractual relationship between the parties shall be Stuttgart. This shall also be the case where the Customer does not have any place of general jurisdiction in Germany or the Customer's habitual place of residence is not known at the time of the bringing of the action in question. Gann's right to bring an action against the Customer at the place of jurisdiction at the location of the latter's place of business shall remain unaffected.
12.4 Should any individual clauses of these contractual terms be or become invalid, this shall not affect the legal validity of the remaining terms. The contractual partners undertake to replace any invalid provisions with legally valid provisions which, in terms of their spirit and purpose, most closely reflect the desired economic outcome. To the extent any relevant statutory provisions exist, they shall supersede the invalid clauses. However, where this would cause unreasonable hardship to either of the contractual parties, the agreement shall be deemed to be invalid in its entirety.
Status: December 2018
GANN Mess- u. Regeltechnik GmbH – Gerlingen, Germany