I. General Points
- These General Conditions of Supply (GCS) for GÄMMERLER GmbH (hereinafter referred to as: “GÄMMERLER”) apply to all current and future tenders, contracts and other legal relationships between the parties.
- The GCS of the contracting partner may only become a constituent part of the contract if they conform to the GSC of GÄMMERLER, or if GÄMMERLER has expressly recognised the GSC of the contracting partner in text form, i.e. either in writing, by fax or by e-mail.
II. Contract, Conclusion and Contract Content
- If a purchase order of a contracting partner qualifies as a binding offer of contract, then GÄMMERLER may accept this within two weeks from receipt. Offers from GÄMMERLER are always non-binding and are subject to confirmation, unless they are expressly declared to be binding tenders.
- The acceptance of an offer may be made by GÄMMERLER by declaration in text form (i.e. in writing, by fax or e-mail) or by performing the ordered service. GÄMMERLER reserves the right not to accept offers without providing any written statement or detailed grounds. In the event of any doubt, the absence of any statement by GÄMMERLER after the expiry of the acceptance period shall constitute a refusal.
- If the contracting partner places the order electronically, GÄMMERLER shall ensure that receipt of the order is confirmed without delay. Confirmation of receipt does not constitute any binding acceptance of an offer. However, the confirmation of receipt by GÄMMERLER may be attached to the acceptance declaration.
- In cases where contracts are agreed verbally, the scope of supply is determined by GÄMMERLER via a written confirmation of contract drawn up by GÄMMERLER.
- If a contract comes to fruition as a result of a proposal by GÄMMERLER, then § 650 German Civil Code (hereinafter referred to as: “BGB”) applies.
- All deliveries and services to be provided by GÄMMERLER are summarised below as “services that form part of the contract“ independently of the legal nature of the contract upon which such deliveries and services are provided.
III. Delivery dates, deliveries
- Partial deliveries are permitted and obligate the contracting partner to pay the proportional amount due, unless such a partial delivery would be unreasonable for it.
- If the contracted services to be provided by GÄMMERLER must be fulfilled upon revocation by the contracting partner, the contracting partner agrees to accept partial deliveries in approximately equal quantities, unless agreed otherwise. Otherwise all contracted services shall be considered as revoked by the contracting partner one calendar month after expiry of the agreed deadline for revocation. Or, in the event of no agreed deadline, three calendar months after expiry of the contract.
- The service deadlines quoted by GÄMMERLER are non-binding and subject to confirmation, unless specifically agreed otherwise in writing. Events of force majeure entitle GÄMMERLER to postpone the fulfilment of the contracted services by the duration of the hindrance. Force majeure shall include any circumstances that are not the responsibility of GÄMMERLER and which have made the fulfilment by GÄMMERLER of the contracted services impossible or unreasonably difficult, such as legitimate strikes or legitimate lock-outs, war, import and export prohibition, energy and raw material shortage, pandemic, epidemic, measures taken by public authorities or delayed deliveries to GÄMMERLER due to causes not the responsibility of GÄMMERLER. If such hindrance should last longer than two months, the contracting partner is entitled, after setting a reasonable new deadline including notice of refusal, to release themselves from the contract if it can prove that contractual obligation still outstanding in full or in part due to the delay, is no longer of any interest to it. In the event of subsequent changes or additions to the contract, the periods and deadlines for service shall restart, even if they have been previously confirmed by GÄMMERLER, or they shall be postponed appropriately, provided that no other agreement has previously been made in each individual case with the contracting partner.
IV. Transfer of risk
- Where no formal acceptance has taken place (see sub-paragraphs IV 2 and IV 3 below) the risk of accidental destruction or accidental deterioration of the contracted service for all deliveries is transferred to the contracting partner at the moment upon which the contracted service is handed over to the freight carrier by GÄMMERLER (transfer of risk).
- Where GÄMMERLER should require, the contracting partner is obligated to formally accept the contracted service upon advice of complete production and readiness for transfer by GÄMMERLER. In such cases, GÄMMERLER shall agree an acceptance date with the contracting partner and shall draw up a transfer and acceptance protocol to be signed by both parties to the contract.
- If no transfer and acceptance date can be agreed, GÄMMERLER shall be entitled, to set the contracting partner, with notification of legal consequences, a reasonable time period for the submission of the acceptance declaration, after the expiry of which the service shall be considered accepted.
V. Duties of the contracting partners to collaborate
- The contracting partner is obligated to provide GÄMMERLER with all the documents required for the fulfilment of the contracted services, free of charge and in good time. Unless otherwise specifically agreed, GÄMMERLER is not obligated to check the content of the documents and the requested requirements (specifications, functions and technical details) made available by the contracting partner for any possible errors or infringement of the rights of third parties by implementation of the described requirements.
- If the contracting partner is providing some of its own services or if services are provided by third parties (including goods delivery services), then the contracting partner shall be responsible for the co-ordination of the various individual work processes and for compliance with the applicable safety regulations and accident prevention stipulations. The contracting partner must grant GÄMMERLER unhindered access to all equipment required for provision of the service and to provide water and energy connections. The costs of connection and consumption will be borne by the contracting partner. Disposal of all waste materials associated with the provision of services by GÄMMERLER is the responsibility of the contracting partner and shall be at his cost.
- If the contracting partner does not fulfil its duty to collaborate to the required level or if GÄMMERLER is prevented from performing its contracted services due to circumstances within the sphere of responsibility of the contracting partner, then GÄMMERLER shall be freed from its contractual duties to the extent to which they are affected and for the period of the relevant incident and may demand appropriate compensation for any extra cost caused by such a circumstance. In such cases, GÄMMERLER shall make allowance for any consequent savings it may make in expenditure or it may gain from other orders. Responsibility for the risk of accidental destruction or accidental deterioration of the contracted service shall be transferred to the contracting partner at the moment when any such acceptance delay occurs.
- The enforcement of the rights of the contracting partner in the event of defects presupposes that it has fulfilled its obligations of investigation and obligations to notify about defects correctly in accordance with § 377 of the German Commercial Code (hereinafter referred to as: “HGB”).
- The warranty shall be inapplicable where there are defects that can be traced back to an accident, misuse or incorrect use of the service by the contracting partner or by third parties. The warranty shall also be inapplicable if the contracting partner carries out changes to the contracted service that have not been agreed in advance with GÄMMERLER in text form, or if the contracting partner has not observed the operating instructions provided by GÄMMERLER.
- If there is a defect in the contracted service, the contracting partner shall be entitled either to claim a supplementary service to rectify the defect or the supply of a new defect-free service from GÄMMERLER. This option shall be available to the contracting partner, Paragraph 1 notwithstanding, through trader’s right of recourse in accordance with § 478 BGB (where applicable in conjunction with § 651 BGB). Where defect rectification is chosen, GÄMMERLER is obligated to pay all costs involved in the rectification of the defect, in particular all transport, transport infrastructure and material costs, provided that they are not increased by the contract-related services having been moved to another location than the domicile or establishment of the contracting partner.
- If the supplementary service is unsuccessful, the contracting partner shall be entitled to terminate or curtail the contract. The liability of GÄMMERLER for damages is governed by Subparagraph VII of these GCS. Any additional liability of GÄMMERLER is excluded.
- If the use of the contracted service leads to infringement of the commercial property rights or copyrights of third parties, GÄMMERLER shall, at its own cost, obtain for the contracting partner the right to use, or shall modify the delivered goods in a manner acceptable to the customer in order to prevent those property rights from being infringed. If this is not possible under commercially acceptable conditions or within a reasonable period of time, the contracting partner shall be entitled to terminate the contract . Under the above-described conditions, GÄMMERLER is also entitled to terminate the contract. The liability of GÄMMERLER for damages is governed by Subparagraph VII of these GCS. Any additional liability of GÄMMERLER is excluded.
In addition, GÄMMERLER will release the contracting partner from any uncontested or legally enforced claims from the owner of the relevant property rights.
- The limitation period for claims relating to defects (including liability claims as per Subparagraph VII of these GCS) is 12 months, calculated from the transfer of risk in accordance with Subparagraph IV of these GCS. In the event of a delivery recourse in accordance with §§ 478, 479 BGB (where applicable in conjunction with § 651 BGB) the legal period of limitation applies.
- Claims for damages of all types, irrespective of legal cause, including damages as a result of the use of the contracted services are excluded, unless GÄMMERLER or their legal representatives or vicarious agents have acted wilfully or grossly negligently or the claims for damages result from failing to meet an assumed guarantee. In the last case, the liability is restricted to such damages as are covered by the guarantee. Compensation for consequential damages (e.g. damages as a result of use of the contracted service, lost profit and lost benefits of use) shall be limited to foreseeable damage and the damage risk typical for such a contract – unless such damages should be the result of a deliberate act by GÄMMERLER.
- In the case of damages resulting from simple negligence, GÄMMERLER shall only be liable if, during the execution of the contract, significant obligations (so-called cardinal obligations) have not been fulfilled. In such cases the liability is restricted to the typical and foreseeable damage. Any reimbursement for consequential damages (e.g. damages as a result of use of the contracted service, lost profit and lost benefits of use) is excluded. In addition, the level of any reimbursement for damages is limited to foreseeable damage and the risk of damage typical for similar contract to the level of three times the amount owed to GÄMMERLER by the contracting partner.
- Claims brought in accordance with the terms of German product liability law are not applicable under the regulations referred to in these stipulations. The same applies to claims involving injury to life, body and impairment of health. In addition, a possibly mandatory statutory liability remains unaffected by these terms.
VIII. Prices and terms of payment
- GÄMMERLER’s prices are understood to be ex-GÄMMERLER works, including loading at the plant, excluding packaging, dispatch and unloading, as well as any insurance required. The legally applicable value added tax will be indicated separately on the invoice.
- Price changes are permitted if there is a period greater than six weeks between the date of the conclusion of the contract and the agreed delivery date. In the event of any permitted price changes, the following applies: If the wage, material costs or market acquisition prices (list prices) increase before the fulfilment of the contracted service or if the rates of exchange change, GÄMMERLER is entitled to increase the price appropriately in proportion to such cost increases.
- In relation to export business, no taxes, customs duties and other outgoings that are charged outside the Federal Republic of Germany to GÄMMERLER, to GÄMMERLER personnel, to any sub-contractor of GÄMMERLER or its personnel are included in the price. They shall be paid by the contracting partner or – if GÄMMERLER is required to pay them out in advance – they shall be reimbursed by the contracting partner.
- Unless otherwise agreed, payment of the outstanding remuneration is to be made, in each case, after submission of invoice, without any discount, according to the following terms: 1/3 down-payment after conclusion of the contract, 1/3 when the contracting partner has been issued with notice of readiness for despatch, and the remaining amount within 14 days of the transfer of risk.
- If, after conclusion of the contract, any doubts should arise as to the ability of the contracting partner to pay or to its credit-worthiness, with the result that the entitlements of GÄMMERLER to payment should appear to be threatened, then GÄMMERLER shall be entitled to demand payment reciprocally and simultaneously or against a security by a directly enforceable irrevocable guarantee from a German high street bank. If the contracting partner does not meet this demand, despite the setting of deadlines with threat of termination, GÄMMERLER may withdraw from the contract excluding any claims for damages by the contracting partner.
- The contracting partner may, particularly in the case of a notice of defects, make a demand for a claim on GÄMMERLER or effect a right to retention only if that demand is uncontested or has been determined to be legally binding.
IX. Retention of title
- The contracted service remains the property of GÄMMERLER until the outstanding reimbursement is paid in full.
- The contracting partner shall be entitled to use and to dispose of the contracted service. However, the retention of title extends to the finished goods as well. GÄMMERLER becomes, as a supplier of intermediate goods, the title owner of the processed goods, under exclusion of § 950 BGB. The contracting partner or processor shall merely be its custodian.
- If the contracted service is combined with or processed with other items not the property of GÄMMERLER, then GÄMMERLER acquires joint ownership of the new item in the ratio of the value of the title reserved goods in relation to the other items.
- The contracted service may only be sold in ordinary and proper business relationships and then only if the receivables of such onward sales have not previously been assigned to any third parties. The debts owing to the contracting partner arising from onward sales is to be assigned to GÄMMERLER in advance, immediately, and to the extent that the contracted service is combined or processed together with other components. In such cases the assigned accounts serve to secure GÄMMERLER only to the value of the contracted service. GÄMMERLER shall not redeem the assigned accounts provided that the contracting partner meets his payment obligations.
- The contracting partner is, however, obligated to advise GÄMMERLER of the third party debtor, upon request, and to notify that third part of the assignment. It shall be entitled to redeem the debt under its own authority as long as GÄMMERLER has not issued any other instruction to it. Any amounts received by it must be paid to GÄMMERLER immediately insofar as debts to GÄMMERLER are due for payment.
- GÄMMERLER undertakes to release any such assigned accounts of its own volition, provided that they exceed the debts to be secured by GÄMMERLER by more than 10 % and that they arise from deliveries that have been fully paid for.
- It shall not be permitted to pledge or secure title reserved goods or the assigned accounts.
- The contracting partner must advise GÄMMERLER of any access by third parties to the goods delivered under retention of title or to the assigned accounts without delay.
- If an agreement in accordance with this Subparagraph IX should be rendered invalid according to the law of the state of the contracting partner, GÄMMERLER is entitled to all other rights that GÄMMERLER may legally retain in accordance with the law of the state of the contracting partner with regard to the contracted service.
X. Intellectual property, software use
- Proposal documents prepared by GÄMMERLER, price quotations, drafts, drawings and calculations (“documents”) remain the exclusive property of GÄMMERLER and may not be copied in textform or made available to third parties without the written approval of GÄMMERLER. If an order does not materialise, the documents must be returned in their entirety without delay to GÄMMERLER and any copies that have been made must be destroyed.
- If any inventions are made in the course of the business relationship with GÄMMERLER, then GÄMMERLER is entitled to exclusive exploitation of the rights derived therefrom, particularly from patents.
- If software forms part of the scope of supply, the contracting partner is provided with a non-exclusive right to use the software supplied, including its documentation. The software is provided for use on the appropriate contracted item. Use of the software on more than one system and for more than one machine and for the purposes of any third party is prohibited.
- The customer may only carry out the following actions with the software to the extent to which it is legally permissible (for Germany: §§ 69 a ff. German copyright law – hereinafter referred to as: “UrhG”) copying, reviewing, translating or converting from the object code to the source code. The customer undertakes not to remove manufacturer’s details – particularly copyright notes – and not to modify them without prior express approval by GÄMMERLER. All other rights to the software and documentation, including copying, remain with GÄMMERLER or the software manufacturer. as appropriate. The issuing of sub-licences is not permitted.
XI. Place of performance, legal domicile and applicable law, other items
- The place of performance for all legal contract obligations shall be the company domicile of GÄMMERLER.
- The legal domicile shall always be the domicile of GÄMMERLER. GÄMMERLER is, however, entitled to initiate litigation at the domicile of the contracting partner.
- The Law of the Federal Republic of Germany is exclusively applicable. UN Purchasing Law is not applicable.
- GÄMMERLER may change the existing GCS with future effect. Any such changes shall be advised to the contracting partner in an appropriate manner and shall be applicable unless the contracting partner objects in writing to the changes within one month.