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General business terms

1. Scope of application

a) The following general business terms only apply to all contracts of purchase, which are concluded with our customer. Opposing or divergent conditions of the customer are not accepted by us, except, we particularly and in written form approve their validity.
Our conditions of sale and delivery are also valid, when we unquestioningly carry out the delivery to the customer knowing of opposing or divergent conditions of the customer.

b) These general business terms only apply to entrepreneurs within the meaning of § 310 Abs. 1 BGB and refer to all future business proceedings with the customer.

2. Offer and contract closing

a) Our offers are non-obligatory regarding price, amount, period of delivery and availability.

b) Orders of the customer will be mandatory with written or printed order confirmation (also invoice or delivery note)

3. Price, terms of payment

a) We calculate the agreed or, if no arrangement has been made, the valid prices at the time of delivery, respectively with possible packaging- and shipment- costs and statutory sales tax.

b) We reserve the right, to respectively change our prices if after contract closing reducing or increasing of costs, particularly because of wage settlements or change of prices for material, occur. In that case the customer has the right to rescind the contract within a period of time of 2 weeks after the notification of the price increase.

c) Insofar as it not results differently in the order confirmation or invoice the payment shall be due immediately, without deductions. The deduction of discount requires a specific written arrangement. In case of delayed payment by the customer the legal requirements of the law shall apply.

d) We reserve the right, to only supply based on payment of delivery or in advance. Is there reasonable doubt the customer’s solvency or credit worthiness and the customer is not willing to pay in advance or to provide suitable security for the payment required of him despite being asked to do so, we reserve the right to rescind the contract, insofar we have not provided our services.

e) We reserve the right to use payments of costs against the oldest due invoices plus the thereon based default interest and costs in the following order: costs, interest, principal amount.

f) Compared to our demands, the customer can only offset if the counterclaim is undisputed or legally binding. To exercise a lien, the customer is only authorized insofar as his counterclaim is based on the same contractual relationship.

4. Periods of delivery

a) We are committed to deliver as fast as possible at any given time. Fixed periods of delivery only exist when they are specifically laid down in writing. Is that the case, then the customer accords a reasonable period of extra time of generally 4 weeks.

b) The condition of correct and punctual deliveries to us as the supplier remains reserved.

c) The day of delivery is deemed to be the day on which the goods leave our warehouse, and if this day is not ascertainable, the day on which the goods are submitted to the customer.

d) We are also entitled to deliver parts of the goods without notification.

5. Shipping

a) We reserve the right to choose the means of transport and the transport route. Additional costs caused by special shipping request of the customer shall be at customer’s expense.

b) The transport risks shall always be borne by the customer. The risks for the delivered goods shall pass to the customer at the time of submission of the delivery in our warehouse to the customer or his representative (e.g. shipping company).
If dispatching the goods is delayed due to circumstances for which we are not responsible, then the risk is transferred to the customer from the day on which the goods are ready for dispatch. We will inform the customer about the dispatch in writing.

6. Force Majeure

All events, that- even if they were predictable- lay beyond the control of the parties and their effects on the fulfilment of the contract cannot be avoided by reasonable efforts of the parties, the affected party will be freed from the fulfilment of the contract for the duration and the scope of the effects.
In case the disturbance lasts longer than two months both parties reserve the right to rescind the contract.

7. Retention of title

a) We retain title to all items we deliver until the customer has met all requirements resulting from our business relation.

b) We shall also be the owner of any new products that are the result of the processing of any conditional commodities. Processing shall be done for us as manufacturer. If the goods are processed, laced or mixed with materials and items that are not our property, we shall acquire joint property rights to the proportion of the invoice amount of our reserved goods in relation to the invoice amounts of the other materials.

c) As long as we reserve the ownership, the customer, if and insofar he has the goods at his disposal, must treat the reserved goods with care and keep them safely and carry out the usual inspection, maintenance and upkeep work at his own expense. During the period of reserved ownership the customer must neither pledge nor assign the conditional commodity. Access by third parties to the reserved goods, e.g. by way of seizure or confiscation, and damage or destruction shall be reported to us immediately. The customer shall bear any expenses required for the release of the seizure and for recovery of our goods unless third parties are authorized to confiscate it.

d) In the event of a conduct of the customer that is not in conformity with the contract, especially violates the obligation to treat all reserved goods with care or observe other duties of care, or arrears in payment we shall have the right to withdraw from the contract and take back the reserved goods.

8. Condition of the goods

a) Our specifications on the items to be supplied (e.g. weights, dimensions, serviceability, resilience, tolerances and technical data) and our representations are descriptions and identifications of the delivery. Deviations according to custom and usage and deviations resulting from legal provisions or deviations constituting technical improvements are permissible as far as they do not impair usability for the contractually agreed purpose.

b) The condition of the goods exclusively refers to the conditions described in our product descriptions, specifications and indications. Public statements, promotion or advertising shall not constitute contractually binding information on characteristics of the goods.

c) Any warranty must be made in writing and is valid only if it sufficiently defines and describes the scope of the guarantee as well as the duration of the geographical restrictions of the warranty.

9. Claims

a) The rights of the customer with regard to defects are subject to his having duly met his responsibilities to check the consignment and to provide notification of defects as required by § 377 HGB

b) Any defects shall be brought to our notice in writing and without delay, however, no later than 14 calendar days after reception of the goods and in case of latent defects after the defect has been detected.

10. Customer’s rights in the event of deficiencies

a) If defects on delivered goods occur we reserve the right to choose the type of supplementary performance- repair or replacement. If removal of defects or replacement delivery takes place, the costs for transport, way, work and material shall be borne by us, unless they are increased due to the fact that the object of purchase was brought to another place of performance unless this transport is in accordance with the good proper use.

b) If and when the subsequent performance fails, the customer is entitled to demand a price reduction or to rescind the contract taking legal requirement. Claims for damages as defined in Number 11shall remain unaffected by the above.

11. Liability for defects

a) We are liable vis-a-vis our customer – which also applies to extra-contractual claims – according to the applicable regulations for loss or damage caused by deliberate act or gross negligence of us, our governing bodies, employees or agents. For violation of significant contract obligations, we also bear liability for gross negligence of our employees. In both cases of liability the maximal amount of the liability will not exceed value of advisory fee.

b) Damage compensation claims by the customer in the case of slight negligence by us, our employees or vicarious agents shall be excluded, unless it is a case of breach of an essential contractual duty, however the maximal amount of the liability will not exceed value of advisory fee.

c) The legal liability in case of injury of life, limb or health shall not be affected; this shall also apply to mandatory liability as provided for the product liability law.

d) Any further liability shall be excluded hereby, without regard to the legal nature of the asserted claim.

12. Limitation period

In case of § 438 Abs. 1 Nr. 3 BGB defect claims of the customer expire after one year and in case of § 438 Abs. 1 Nr. 2 BGB after two years and shall start with the statutory beginning of the limitation period.
Imperative legal provisions regarding limitation periods and liability, such as liability when offering a warranty, liability for deliberate or grossly negligent actions, for the injury to life, limb or to health, liability under the Product Liability Act and the provisions of the Consumer Goods Purchase Act are not thereby affected.

13. Technical advice

The technical advice provided by us in written and by tests is conducted to the best of our knowledge but is only to be considered as non-binding advice in relation to the property rights of third parties and, thus, does not release the customer from his obligation to inspect the products delivered for their suitability for the intended processes and purposes. The application, use and processing of the products occur beyond our possibilities of control and therefore lie exclusively in the sphere of responsibility of the customer.

14. Applicable Law, Court of Jurisdiction

a) The business relation is governed by German law. The UN Sales Convention does not apply.

b) Insofar the customer is a merchant in the sense of German Commercial Code the place of fulfilment and the court of jurisdiction is Verder/Aller. However, we are also entitled to bring action against the customer at the competent court of his domicile or business location.

15. Validity clause

In the event that any one provision of these terms and conditions of trade or a provision within the framework of other agreements reached between us and the customer entirely or partly is or becomes invalid, the validity of all other provisions of these terms and conditions of trade or other agreements shall remain unaffected thereby. The contracting parties undertake to replace the invalid provision by such valid provision which most possibly comes to the commercial success aimed at with the ineffective stipulation.

MTM Anlagenbau GmbH
Zailach 6
91611 Lehrberg