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GTCS

General Terms and Conditions of Supply (GTCS) of

Blobel Umwelttechnik GmbH

(Last updated October 2011)

 

I. General - Scope

  1. Our General Terms and Conditions of Supply (GTCS) shall apply for all our business relationships with our customers (hereinafter "Customer"), however only if the Customer enters into a business relationship with us as an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB) or is a legal person under public law or a separate estate under public law.
  2. Our GTCS shall apply in their respective version(s) as a framework agreement, including for future contracts pertaining to the sale and/or supply and/or assembly/installation of movables with the same Customer, without our having to refer to them again in each individual case.
  3. Our GTCS shall apply exclusively. Any differing, contradictory or supplementary General Terms and Conditions of the Customer shall only form part of the contract if we have expressly approved their validity. This requirement for approval applies in all cases, for example, even if we deliver without reservation in full knowledge of the General Terms and Conditions of the Customer.

 

II. Offers, Conclusion of Contract, Product Specification

  1. Our offers are subject to confirmation and are not binding. If a Customer makes an order, this shall be deemed to be a binding contract offer. Provided that nothing else results from the order, we shall have the right to accept the order within 4 weeks from the end of the calendar week in which it is dispatched by the Customer. A contract shall only come about on our written confirmation of order or on our execution of the order.
  2. The supply contract concluded in writing, including these GTCS, is decisive alone for the supplier relationship between us and the Customer. Any amendments and supplements to the contracts concerned including these GTCS shall only be valid if agreed in writing. Transmission of the document by fax is sufficient to satisfy the written form, but other telecommunicative transmission, particularly via email, is not sufficient.
  3. Information from us on the subject of the delivery or service (e.g. weights, dimensions, usage values, loading capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and figures) are only approximately applicable, unless its applicability for the purpose contractually intended requires exact conformity. These shall not be considered guaranteed characteristics, rather descriptions or characterisations of the delivery or service. Customary deviations and deviations which occur on the basis of legal regulations or represent technical improvements, as well as the replacement of components by equal parts shall be permitted as far as they do not impair the contractually intended use. The Customer is to tolerate customary short or excess deliveries. It is to also tolerate short or excess deliveries by up to 10% with items that are manufactured in accordance with individual specifications of the Customer. Only the quantity delivered shall be charged.
  4. We reserve all ownership rights and copyrights to illustrations, drawings, calculations and other documents, models, samples, tools and other resources. Such documents and items may not be passed on to third parties unless we have expressly agreed to this in writing. This particularly applies to such documents which are deemed as "confidential" regardless of whether these are available in a written or electronic form. Tools shall also remain our sole ownership if the Customer partly bears the costs of their production. The Customer is obliged to return the documents and items designated in the paragraph above to us in full on request and destroy any copies that may have been made if they are no longer required by the Customer for its usual business and within the scope of its business relationship with us or if negotiations have not led to the conclusion of a contract.
  5. Samples are considered to be type samples to show the approximate condition of the merchandise. They do not establish any claim on the part of the Customer that the delivered merchandise shall be the same in all aspects as this sample unless it has been expressly agreed in writing that the merchandise shall conform precisely to the sample.

 

III. Prices and Payment Conditions, Place of Performance

  1. Provided that nothing else has been agreed, our prices are in euros net "ex works" ("exw") Gersthofen, Magdeburg, Rohrenfels or Friedberg (resp. Germany) (Incoterms 2000). Shipping and packaging costs and VAT in their respective statutory amount are not included therein and are also to be borne by the Customer. For export shipments, this shall also apply for customs and other official levies.
  2. We reserve the right to amend our prices appropriately if costs should rise or fall, after conclusion of the contract, particularly as a result of wage contracts or changes to material prices. We will provide the Customer with respective proof on request.
  3. Unless otherwise agreed, our monetary claims shall fall due 14 days after invoicing and delivery of the merchandise or acceptance of our services. At the end of the payment term specified in the order confirmation, or otherwise as specified above, the Customer shall default without a reminder being necessary (Section 286 para. 2 no. 2 BGB).
  4. The Customer is obliged to pay interest on the debt during the default period at 8 (eight) percentage points above the basic interest rate in accordance with Section 246 BGB. This shall not affect our right to assert claims for further damages for delay. Our claim against merchants for commercial maturity interest shall also remain unaffected, Section 353 German Commercial Code (HGB).
  5. The Customer shall only be permitted to offset or retain claims if its counterclaims are upheld by a court of law or are undisputed. In the event of defects Section VII.4. sentence 2 shall remain unaffected.
  6. If it is discernible after conclusion of the contract that our claim to the purchase price/remuneration is jeopardised by the Customer's deficient capacity (e.g. by a request to start insolvency proceedings), we are in accordance with the statutory provisions entitled to refuse our performance and - if necessary, after setting a deadline – to withdraw from the contract (Section 321 BGB). For contracts on the production of nonfungible items (individual or special orders), we can declare our withdrawal immediately; statutory provisions on the dispensability of deadline setting shall remain unaffected.
  7. The place of performance for all obligations for both Parties is our company grounds in Gersthofen, unless another place of performance has been expressly agreed for a specific obligation to perform.

 

IV. Delivery, Delivery Time

  1. Provided that nothing else has been agreed by the order confirmation or otherwise in writing, deliveries are "ex works" ("exw") Gersthofen, Magdeburg, Rohrenfels or Friedberg (resp. Germany) (Incoterms 2000). This also applies if we ship the merchandise to another place on the request of the Customer.
  2. Partial deliveries are permitted unless they are unreasonable for the Customer with regard to the use expressly agreed in the contract.
  3. Our prospective periods and dates for deliveries and services shall only be considered approximate unless a fixed period or date has been expressly confirmed or agreed. If there is no prospective delivery period or one has not been agreed, the delivery period shall be approximately 6 weeks after concluding the contract. If shipment has been agreed, delivery periods and delivery dates shall refer to the point in time in which merchandise is handed over to the forwarder, freight carrier or other third party entrusted with transport.
  4. We can - notwithstanding our rights arising from a default of the Customer - request an extension of the delivery and service periods from the Customer or a postponement of delivery and service dates by the timeframe in which the Customer does not fulfil its contractual obligations that are to be satisfied before delivery. This applies especially in case the rendering of our services depends on a clarification of technical issues that require a participation of the Customer.
  5. Our liability in the event of default is determined in Section VIII.

 

V. Transfer of Risk, Transport, Packing

  1. If delivery is to take place "ex works (exw)" Gersthofen, Magdeburg, Rohrenfels or Friedberg (resp. Germany) (Incoterms 2000), the risk of coincidental loss and coincidental deterioration of merchandise transfers to the Customer at the time we inform it that the merchandise is ready for collection. The risk shall also transfer to the Customer if it falls into default of acceptance or breaches an obligation to cooperate unless it is not responsible for the breach of duty. In these instances, we are entitled to store the merchandise with us or a third party on the account of the Customer.
  2. If the merchandise is shipped by us on the request of the Customer, the risk shall transfer to it at the latest at the time that the merchandise is supplied to our premises for loading. This also applies if transport takes place in our own vehicles.
  3. If permitted partial deliveries take place, the transfer of risk shall apply to these.
  4. The selection of the type and method of shipping, packaging and transport of merchandise shall be at our appropriate discretion, unless otherwise agreed in writing. The shipment shall be insured against theft, breakage, damage in transit, fire and water damage or other risks only on the express request of the Customer and at its cost. We refer to Section X. 4. with regard to the Customer's obligation to insure the merchandise.
  5. Packaging for transportation and all other packaging, in accordance with the Packaging Ordinance (“Verpackungsverordnung”), will not be taken back; they shall become the property of the Customer, with the exception of reusable packaging and pallets. The Customer is obliged to dispose of the packaging at its own cost.

 

VI. Mounting and Installation/Assembly

Unless agreed otherwise in writing the following regulations shall apply for the mounting and installation/assembly:

  1. The Customer is required to undertake at his own cost and to provide in time:
    1. all earthwork, construction work and other extra work outside our sector of industry, including the respectively required specialized staff as well as back staff, building materials and tools,
    2. the utensils and materials required for the assembly and commissioning, e.g. scaffolding, hoisting devices and other equipment, fuel and lubricants,
    3. energy and water at the application site including access points, heating and lighting,
    4. rooms at the installation site that are lockable, dry and big enough and sufficient for the safekeeping of machine parts, equipment, tools etc. as well as work- and common rooms suitable for the assembly personnel including sanitary facilities appropriate for the circumstances; further, the Customer is obliged to take such measures for the protection of our property as well as our assembly personnel at the installation site which he would also take for the protection of his own assets,
    5. protective gear and safety devices that are required according to special circumstances of the installation site.
  2. Prior to the commencement of the installation works the Customer is obliged to provide unrequested the necessary information regarding the location of concealed electricity conduits, gas and water pipes as well as the necessary statical information.
  3. Prior to the mounting or assembly the free issue equipment and items required for the commencement of the works have to be at the mounting or installation site and all preparatory works must have progressed so far that mounting or assembly can start as agreed and be carried out without interruption. Access ways and the mounting or installation site must have been leveled and cleared.
  4. Should the mounting, assembly or commissioning be delayed due to circumstances beyond our responsibility, the Customer shall bear to an appropriate extent the costs of us or the assembly personnel for waiting time and additionally required travels.
  5. The Customer shall provide us with weekly information on the duration of the working hours of the assembly personnel and shall immediately confirm the completion of mounting, assembly or commissioning.
  6. Should we request acceptance of the deliveries and services after completion, the Customer shall be obliged to do so within two weeks. Otherwise, the acceptance shall be deemed made. The acceptance shall also be deemed made, if the delivered merchandise and services – also after completion of an agreed test phase, if any – have been put into use.

 

VII. Claims of the Customer for Defects

  1. Statutory provisions shall apply for the rights of the Customer on account of material defects and defects of title, unless otherwise specified hereinafter. Statutory special provisions shall remain unaffected in all instances of merchandise being delivered to a consumer (supplier regress in accordance with Sections 478, 479 BGB).
  2. The Customer’s claims for defect presuppose that it has duly fulfilled its duties of inspection and notification of complaint (Section 377 HGB). If a deficiency arises on inspection or later, we are to be informed of this in writing without delay. Independent of these duties of inspection and notification of complaint, the Customer is to report obvious defects (including incorrect and short deliveries) on delivery thereof in writing without delay. Should the Customer neglect to carry out the proper inspection and / or dispatch of a notification of defects our liability for defects that have not been reported in good time or at all shall be excluded.
  3. If the delivered item is defective, we can at first decide whether we provide a supplementary performance by eliminating the defect (improvement) or by delivering a faultless item (replacement). Our right to refuse the selected kind of supplementary performance under the statutory conditions remains unaffected.
  4. We have the right to make the due supplementary performance dependent on the Customer paying the due purchase price/remuneration. However, the Customer shall be entitled to retain a share of the purchase price / remuneration that is reasonable in proportion to the defect.
  5. The Customer is obliged to provide us with the time and opportunity required for the due supplementary performance, particularly to transfer the queried merchandise for control purposes. In the event of replacement deliveries, the Customer must return the defective merchandise to us in accordance with the statutory provisions in place.
  6. Expenditure, particularly transport, infrastructure, labour and material costs, required for the purpose of review and supplementary performance shall be borne by us if a defect is present. If a Customer's demand for repair proves to be unjustified, however, we can request that the Customer refunds the costs arising for this.
  7. In urgent cases, e.g. if operational security is jeopardised or for the defence of disproportionate damage, the Customer has the right to eliminate the defect itself and request the objectively necessary expenditure for this. We are to be informed of such self-remedy immediately, if possible in advance. A right to self-remedy does not exist if we would be entitled to refuse such a repair in accordance with the statutory provisions.
  8. If the supplementary performance has failed or a reasonable period set by the Customer for the supplementary performance has expired without success or is unnecessary under statutory provisions, the Customer may withdraw from the contract or reduce the purchase price / remuneration. In the case of an insignificant defect, however, there shall be no right to withdraw.
  9. Claims on the part of the Customer for damages or compensation for wasted expenses shall exist only in accordance with Section VIII. and shall in all other respects be excluded.

 

VIII. Other Liability

  1. Insofar as nothing different is provided for in this GTCS including the following provisions, we shall be liable in the case of a breach of contractual and non-contractual duties in accordance with the relevant statutory provisions.
  2. We shall be liable for damage - regardless of its legal basis - in the event of intent and gross negligence. In the event of slight negligence we shall only be liable for
    1. Damage from injury to life, body or health,
    2. Damage from the culpable breach of an essential contractual obligation (an obligation, the fulfilment of which is prerequisite to enable the proper implementation of the contract and upon compliance with which the contract partner regularly relies and should be able to rely); in this instance, our liability is limited to compensation for the foreseeable damage typically occurring.
  3. The limitations of liability arising from Paragraph 2 above shall not apply if we fraudulently hide a defect or have offered a guarantee for the properties of the merchandise. The same applies for the Customer's claims in accordance with product liability law.
  4. Due to a breach of duty which does not consist of a defect, the Customer can only withdraw or terminate the contract if we are responsible for the breach of duty. An unrestricted right of termination (in particular according to Sections 651, 649 BGB) of the Customer is excluded. Apart from that, the statutory provisions and legal consequences shall apply for withdrawal and termination.

 

IX. Statute of Limitations

The Customer's claims that are based on a breach of duty within the scope of a purchase contract shall uniformly fall under the statute of limitations subject to Section 479 BGB in one year after delivery of the merchandise. This shall apply independently of whether the breach of duty is a material defect or breach of another contractual duty. Statutory statute of limitations shall be applicable for damage on account of injury to life, body or health, damage that falls under product liability law and damage that stems from intent or gross negligence. If the merchandise has been used in its typical manner of use for a building/construction (“Bauwerk”) and caused its defectiveness, statutory statute of limitations shall apply in accordance with Section 438 para. 1 no. 2 BGB.

 

X. Retention of Title

  1. We retain ownership of the merchandise delivered by us until all present and future claims from the delivery contract and an ongoing business relationship (secured claims) have been paid in full; the retention shall refer to the recognised balance if the account relationship in question is a current account.
  2. Merchandise under retention of title may not be pledged to third parties or transferred as security before the secured claims have been paid in full. The Customer is obliged to inform us immediately in writing if third parties have access to merchandise belonging to us so that we can file a lawsuit in accordance with Section 771 Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse us for the court and out of court costs incurred in respect to a lawsuit in accordance with Section 771 ZPO, the Customer shall be liable to us for damage resulting from this.
  3. We have the right to withdraw from the contract under the statutory provisions and/or to demand the merchandise on the basis of retention of title if the Customer is in breach of contract, especially for nonpayment of the purchase price due. Request for surrender does not include at the same time a declaration of withdrawal; we are in fact entitled to merely request the surrender of the merchandise and reserve withdrawal. If the Customer does not pay the purchase price due, we may only assert these rights if we have set the Customer an appropriate deadline until which to pay and this has not been done or such deadline setting is dispensable according to the statutory provisions.
  4. The Customer is obliged to look after the merchandise. The Customer is obliged to sufficiently insure the merchandise to its original value at its own cost against damage caused by fire, water, breakage, transport or theft and maintain this insurance for the duration of our reserved ownership.
  5. The Customer is entitled to resell and/or process the merchandise under retention of title in the ordinary course of business. In this instance, the following provisions shall apply in addition.
    1. The retention of title shall extend to the products, up to their full value, created from the manufacturing, mixing or combination of our merchandise, whereby we shall be considered to be the manufacturers. If the property rights of third parties remain unaffected when processing, mixing or combining the merchandise with their goods, we shall acquire joint ownership in proportion to the invoice values of the processed, mixed or combined merchandise. That aside, the same shall apply for the resultant product as for the merchandise delivered under retention of title.
    2. Claims against third parties arising from the resale of the merchandise or of the product shall already now be assigned by way of the security by the Customer to us entirely or amounting to any coownership share pursuant to the previous paragraph. If there is a current account relationship between the Customer and the third party, the assignment refers to the recognised balance and the "causal" balance in the event of third party insolvency. We accept the assignment. The Customer’s obligations as set out in Paragraph 2 above shall also apply in consideration of the assigned claims.
    3. The Customer shall still be authorised to collect the claim alongside us. We shall endeavour not to collect the claim, as long as the Customer meets its payment obligations to us, does not default in payment, no application for insolvency proceedings is made, and its performance capacity is not otherwise deficient or lacking. However, if this is the case, we may request that the Customer disclose the claims assigned and the debtors in question, make all indications required for collection, surrender the relevant documents, and notify the debtors (third parties) of such assignment of claims.
    4. If requested to do so by the Customer, we shall release securities at our discretion if the realisable value of the securities of our claims exceeds 10%.

 

XI. Claims of the Vendor for Damages

  1. Our right to request compensation for damages as seller is determined by the statutory provisions, unless otherwise specified in this contract. If we request compensation for damages rather than service and the merchandise has still not been delivered or is taken back by us exercising our statutory rights, claims for damage in the amount of 25% of the purchase price can be claimed without proof. If we prove that we have incurred more damage than the lumpsum, we can request reimbursement of the exceeding damage.
  2. If we take back the object of purchase within the scope of the agreed retention of title or in connection with our claim for damage rather than service, we are in addition to the lumpsum damage agreed in Paragraph 1 above also entitled to a lumpsum of 15% of the current value of the returned merchandise as compensation for the expense of taking it back and its utilisation.
  3. The Customer reserves the right to prove that no losses, or losses lower than the lumpsums stated in the Paragraphs 1 and 2 above, have been incurred.

 

XII. Proof in Cases of Export Delivery and Intra-Community Supply of Goods

  1. If delivery is made by us as a VAT free export delivery or contract processing of export items or VAT free community supply of goods within the meaning of Sections 4 no. 1 lit. a and b, 6, 6a, 7 German Turnover Tax Act (UStG), the Customer is obliged to transfer all written documents on our request in accordance with Sections 8 et seqq., 17a et seqq. Tax Implementation Order (UStDV) that are required to receive VAT exemption, in particular, but not exclusively
    1. An export certificate from the border customs office of a Member State of the European Union monitoring the delivery from the community area for export deliveries or contract processing of export items;
    2. A delivery note, a written acknowledgement of receipt from the Customer or the recipient to whom the Customer delivers for community supply of goods, and in cases in which the Customer is transporting or shipping goods, the written affirmation from the Customer or his agent that it is transporting the merchandise to the territory of other EU Member States.
  2. If the Customer does not send us the requested documents until the deadline, after we have requested the transfer thereof from the Customer setting a deadline of two weeks, the Customer is obliged to pay a contractual penalty to us. The amount of the contractual penalty is the amount in euros that is equal to the VAT being cancelled on the delivery, if this would arise. We reserve to claim further damages. The contractual penalty is credited against a damage as a result of any additionally demanded VAT by official authorities.

 

XIII. Applicable Law, Place of Jurisdiction

  1. For these GTCS and all legal relationships between us and the Customer, the law of the Federal Republic of Germany shall apply, excluding international and supranational (contract) law, particularly the UN Convention on Contracts for the International Sale of Goods. The preconditions and effects of the retention of title pursuant to Section X shall be subject to the laws of the respective location where the merchandise is stored, insofar as the choice of law agreed on in favour of German law is inadmissible or invalid.
  2. If the Customer is a merchant, legal person under public law or a separate estate under public law, the place of jurisdiction shall be our registered office; however, we also have the right to sue the Customer at another location or at any other permissible place of jurisdiction in individual cases.