1. scope of application
1.1 Our General Terms and Conditions apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) and legal entities under public law or special funds under public law. We shall only recognize terms and conditions of the customer that conflict with or deviate from our General Terms and Conditions if we agree to their validity in writing. The customer’s terms and conditions of business shall not apply even if we carry out the delivery without reservation and without objecting to them again.
1.2 These Terms and Conditions of Sale shall also apply to all future transactions with the customer, insofar as these are legal transactions of a related nature.
1.3 Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall take precedence over our General Terms and Conditions. Subject to proof to the contrary, the content of such agreements shall be governed by a contract or confirmation (at least in text form in each case).
2. offer and conclusion of contract
Our offers are subject to change. A contractual relationship comes into existence solely through our order confirmation (at least in text form) or through the provision of the service. If an order addressed to us is to be regarded as an offer in accordance with § 145 BGB, we can accept this within two weeks. The accuracy of documents provided (e.g. drawings/CAD data) or sample parts for the preparation of quotations cannot be checked by GDH and is excluded as grounds for complaint.
3. documents provided
We reserve the right of ownership and copyright to all documents provided to the customer in connection with the order placement – including in electronic form – such as calculations, drawings etc.. These documents may not be made accessible to third parties unless we give our express written consent.
4 Prices and payment
4.1 Unless otherwise agreed, our prices are ex works (EXW 56470 Bad Marienberg, Incoterms® 2020) excluding packaging and plus VAT at the applicable rate. Packaging costs will be invoiced separately.
4.2 All payments must be made exclusively to the accounts listed in the invoice.
4.3 Unless otherwise agreed in our order confirmation, our invoice amounts are payable within 8 days with a 2% discount or within 30 days net after invoicing.
4.4 The following terms of payment shall apply to tool or fixture costs:
– 40 % of the costs if the order is received in writing within 8 days net
– 40 % of the costs upon acceptance of the tool/device at our premises within 8 days net
– 20 % of the costs upon delivery of the tool/device and/or delivery of initial samples manufactured using the tool/device within 8 days net.
4.5 Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in labor, material and distribution costs for deliveries made 3 months or more after conclusion of the contract.
4.6 If the customer is in default of payment, we shall be entitled to demand interest on arrears at a rate of 9 percentage points above the respective base interest rate in accordance with § 247 BGB. The assertion of further damages caused by delay remains unaffected by this.
5. rights of retention
The customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
6. delivery time
6.1 The information on delivery periods or delivery dates shall be non-binding unless they have been expressly confirmed by us in writing.
6.2 The commencement of the delivery period stated by us is subject to the timely and proper fulfillment of the customer’s obligations, as well as an amicable technical clarification, should this be necessary. The defense of non-performance of the contract remains reserved.
6.3 If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect. Further rights remain reserved.
6.4 Partial deliveries are permissible even without express agreements.
7 Transfer of risk on shipment
If the goods are dispatched to the customer at the customer’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, i.e. at the latest when the goods leave the factory/warehouse (EXW 56470 Bad Marienberg, Incoterms® 2020). This applies regardless of whether the goods are shipped from the place of performance or who bears the freight costs.
8. reservation of title
8.1 We reserve title to the delivered goods until all claims arising from the contract have been paid in full. We are entitled to reclaim the goods if the customer acts in breach of contract.
8.2 The customer is obliged to treat the delivered item with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure them adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the customer must carry this out in good time at his own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to pay us the judicial and extrajudicial costs, e.g. of an action pursuant to Section 771 ZPO, the customer shall be liable for the loss incurred by us.
8.3 The customer is entitled to resell the delivered goods in the normal course of business. The customer hereby assigns to us the claims against the purchaser arising from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including VAT). This assignment shall apply irrespective of whether the delivered item has been resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we shall not collect the claim as long as the customer meets his payment obligations, is not in default of payment and, in particular, no application for the opening of insolvency proceedings against his assets has been filed or payments have been suspended.
8.4 The customer may only combine the item with a piece of land or a building for a temporary purpose and not with another item to form a single item until ownership has been transferred to the customer.
8.5 We undertake to release the securities to which we are entitled at the customer’s request if their value exceeds the claims to be secured by more than 20%.
9 Warranty and notification of defects as well as recourse/manufacturer recourse
9.1 Warranty rights of the customer presuppose that the customer has checked the item or the work immediately after handover/acceptance for conformity with the contract, suitability for use and freedom from defects. In relation to merchants, the obligation to inspect and give notice of defects pursuant to § 377 HGB (German Commercial Code) shall also apply.
9.2 Claims for defects shall lapse within one year of handover/acceptance of the goods delivered by us. Insofar as the law prescribes longer periods for buildings and items for buildings, recourse claims under sales law or construction defects, these periods shall apply. The statutory period of limitation shall apply to claims for damages insofar as we are guilty of intent or gross negligence or in the event of injury to life, limb or health based on an intentional or negligent breach of duty on our part.
9.3 If, despite all due care, the delivered goods have a defect that was already present at the time of handover/acceptance, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We must always be given the opportunity for subsequent performance within a reasonable period of time.
9.4 If the subsequent performance fails, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
9.5 Claims for defects shall not exist in the event of only insignificant deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences which are not assumed under the contract. If improper repair work or modifications are carried out by the customer or third parties, no warranty claims shall exist for these and the resulting consequences.
9.6 Claims of the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, including any dismantling and installation costs, are excluded if the expenses increase because the goods delivered by us have subsequently been taken to a place other than the customer’s branch office, unless the transfer corresponds to their intended use. Our consent must be obtained before the item is returned.
9.7 The customer shall only have a right of recourse against us to the extent that he has not entered into any agreements with his customer that go beyond the mandatory statutory warranty claims. Paragraph 6 shall also apply accordingly to the scope of the customer’s right of recourse against us.
10. tool life/storage of tools
10.1 Unless explicitly agreed otherwise with the customer, the production of tools shall be subject to the condition that they are used on machines in our company. In this case, the customer will not incur any additional costs for storage on our premises. We may dispose of tools that have been stored by us for longer than five years without use by the customer, provided that we have offered the customer the collection of the tools or the payment of a flat-rate storage fee for the future with three weeks’ notice prior to disposal.
10.2 Tools that are ordered by the customer but are not intended for use on our machines will be collected by the customer after completion and acceptance.
10.3 Defined tool life (e.g. output quantity of parts in pieces) must be agreed separately. If the customer has not defined any minimum quantities when ordering tools, the customer shall have no claims in this respect. We design the tool on the basis of the intended use according to the state of the art. In the case of defined service lives/output quantities and the use of the tool on machines in our company, the customer shall not incur any costs for possible repair measures until these have been fulfilled. For tools used by the customer himself, we reserve the right to check whether the agreed service life/output quantities cannot be achieved or adhered to due to incorrect use. If incorrect use is the cause of the defect, there are no claims for rectification by us.
10.4 We shall inform the customer in writing in advance of any repair measures required to ensure that the tool can be used after a defined output quantity has been exceeded. Repairs shall only be carried out after the customer has placed a written order.
11.1 This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
11.2 The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office in 56470 Bad Marienberg, unless otherwise stated in the order confirmation. We are also entitled to take legal action before the courts responsible for the customer’s registered office.
11.3 All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
GDH Metallverarbeitung GmbH
Hinter der Jahnstraße
456470 Bad Marienberg
Phone: +49 2661 9156-10