We only deliver and perform services in accordance with our terms of delivery, below, even if no express reference is made later on. Changes to these conditions, in particular deviating terms and conditions of the customer, are hereby discounted. Deviating conditions of purchase of the customer are expressly discounted; they do not apply to GE&PM GmbH.
1. Pre-contractual services, quotation and acceptance
1.1 The customer undertakes to keep all related processes as well as verbal or written information secret and to use them only in the context of the collaboration.
All information, data, designs, etc., generated due to the collaboration are considered as entrusted within the meaning of §18 of the Unfair Competition Act (UWG). Any infringement, in particular the disclosure to third parties, is strictly prohibited.
1.2 All quotations are always non-binding. Orders are considered as approved and accepted after GE&PM GmbH has confirmed this in writing. Verbal agreements or commitments need to be made in writing, and are only binding for GE&PM GmbH after written confirmation.
1.3 All statutory and official regulations and the standards stipulated in the country of destination which relate to the execution of the delivery and services, to the business and to disease and accident prevention must be reported in writing to GE&PM GmbH at the point of ordering at the latest. The customer alone is liable for disregard of this reporting requirement and the resulting disadvantages.
1.4 Individual agreements, deviations and supplements to these terms and conditions made on a case-by-case basis must be made in writing in order to be valid. Subject to evidence to the contrary, a contract or confirmation on our part shall be authoritative for the content of such agreements.
1.5 The property and copyright exploitation rights for cost estimates, drawings and other documents belong without restriction to GE&PM GmbH. Disclosure to third parties requires the approval of GE&PM GmbH.
2. Prices, delivery and payment conditions
2.1 The prices are ex works including loading at the factory, but excluding packaging, delivery, insurance and customs duties. VAT is added to the agreed prices at the usual rate.
2.2 Payment and pricing conditions are only valid after written agreement or confirmation by GE&PM GmbH. We reserve the right to raise agreed prices accordingly if cost increases occur after conclusion of the contract, in particular due to material price increases or due to requests for modification by the customer.
2.3 Agreed delivery dates for deliveries and/or services presuppose the fulfilment of contractual duties and obligations on the part of the customer.
2.4 If the creditworthiness of the customer changes for the worse, all claims become immediately due for payment. The customer is not entitled to assert or offset a right of retention against our claims, unless the counterclaims are undisputed or have been determined by a court of law. Our right under § 321 of the German Civil Code (BGB) remains unaffected.
2.5 Changes in material prices, in particular of precious metals, are always charged at the current price valid at the time of delivery.
2.6 Safety accessories such as barriers and cover grilles, railings, etc., even if required by statutory regulations and/or regulatory requirements, will only be supplied if this has been expressly agreed in writing
2.7 GE&PM GmbH is under no obligation to supply or provide any parts or services that have not been offered.
2.8 Assembly services that have been offered and/or are to be performed are based on the statutory working hours and/or those agreed by collective agreements that are applicable to GE&PM GmbH, unless otherwise agreed in writing.
2.9 For overtime and work during nights, on Sundays or public holidays, the following surcharges will apply. The regular working hours are 8 hours/day, or 40 hours/week on 5 working days. Travel times and waiting times of up to max. 12 hours are considered as working hours. The following surcharges are to be paid:
a. Monday to Friday, for the first two daily hours of overtime (8th to 10th hours) +25%, from the 3rd daily hours of overtime, +50%
b. for work on Saturdays +25%,
c. for work on Sundays +50%,
d. for night work (from 8 pm to 6 am) + 25%
e. for work on all public holidays +150%
Applicable public holidays are the paid public holidays at the place of performance.
2.10 The standard subsistence allowance is to be compensated at the rates applicable in the country in question. Additional expenses for meals on business trips are billed in accordance with the applicable provisions of the Income Tax Act (EStG).
2.11 Invoices are payable no later than 30 days after receipt of the invoice, without deduction. All costs of the payment transaction shall be borne by the customer. GE&PM reserves the right to assign claims arising from the business relationship.
2.12 The customer bears the risk of the payment method.
3. Retention of property rights
3.1 The delivered goods and delivery items remain our property (reserved property) until the complete payment of all claims arising from the business relationship.
3.2 Until the transfer of ownership, the customer shall insure the reserved property against loss, breakage, fire and other damages. The customer assigns to us all rights under the relevant insurance contracts and its claims against its insurers. We hereby accept this assignment.
3.3 During the period of retention of title, the customer may neither pawn the reserved property nor pledge it as security. The customer must notify us immediately if the goods are seized or confiscated.
3.4 In the event of breach of contract by the customer, in particular in the event of default in payment, we shall be entitled to take back the goods, following a warning, if the customer cannot provide adequate security. This also applies in the case of overindebtedness, stoppage of payments, opening of insolvency proceedings and/or an otherwise substantial deterioration of its economic conditions. The assertion of retention of title and the pledging of reserved items by us shall not be regarded as cancellation of the contract.
3.5 The customer is entitled to resell the reserved property under normal conditions as part of the normal course of business. In such a case, the customer’s claims from the resale shall already be assigned to us now, to the amount of our invoice value, including VAT. We hereby accept this assignment.
3.6 If the reserved property is processed along with other items and/or system parts not belonging to us, we acquire co-ownership of the newly created item in the proportion of the value of the reserved property.
3.7 We undertake to release the securities to which we are entitled insofar as their value exceeds the claims to be secured by more than 20%.
4. Export control
4.1 Shipping delays resulting from the fact that GE&PM products are subject to state export control and can only be delivered in compliance with export control regulations are not to incur any costs to us. The regulations of the foreign trade law on exports are to be strictly observed by the customer.
4.2 The customer is obliged to inform GE&PM GmbH in detail and in writing about existing licensing requirements for (re-)exports in accordance with the provisions of the country of destination as well as the export and customs regulations of the country of origin of the goods and services.
4.3 Imported goods must undergo customs clearance before delivery. The customer must provide any statements and information required under Council Regulation (EC) No. 1207/2001 at his own cost, must consent to examinations by the customs authorities and must provide any necessary official confirmation.
5. Default and liability for defects
5.1 If non-compliance with delivery and/or services is due to force majeure or the result of industrial disputes, official interference, operational disruptions, material procurement and/or energy supply difficulties or other extraordinary circumstances, the delivery time shall be extended by the duration of the hindrance, regardless of whether the circumstances occur in our company or at our subcontractors. Not covered are cases that, despite the predictability of these circumstances, can be prevented and/or averted by us by means of reasonable measures. The occurrence and probable duration of such a disruption must be communicated to the customer immediately.
5.2 If, as a result of such circumstances, it becomes impossible or no longer economically reasonable to fulfil the contract, we may terminate the contract in whole and/or in part. Claims for damages by the customer due to the exercise of the right of withdrawal do not exist. The customer shall be informed without delay of the use of the right of withdrawal after the significance of the event is ascertained, even if an extension and/or postponement of the delivery date was initially agreed with the customer.
5.3 Claims for damages by the customer due to delay beyond the thresholds specified in Section 5.1 are allowed. The amount of damages is limited to 0.5% for each week started, but not more than 5% of the net order value.
5.4 If, at the request of the customer, the shipment is delayed after we have given notice of it being ready for shipping, we reserve the right to charge for the costs incurred by storage. Storage costs correspond to at least 0.5% of the invoice amount – and in the case of partial deliveries, the pro rata invoice amount – per month. After the expiration of a reasonable grace period, we reserve the right to make other arrangements for the use of the delivery item and to provide the customer with an appropriately extended deadline.
5.5 The customer must inspect the delivery item immediately after delivery and, if necessary, notify us in writing of any complaints immediately upon detection.
5.6 In the case of defective delivery and services, the customer has the right either to have the defect rectified or to delivery of a defect-free item (obligation to provide subsequent remedy), with the measure being of our choosing.
5.7 The period of limitation for claims for defects is 12 months from the date of commencement of the period of statutory limitation, provided that GE&PM GmbH is not liable for intent or gross negligence or because of injury to life, limb and health. The limitation of liability also does not apply if GE&PM GmbH has delivered an item that has been used for a building in accordance with its usual manner of use and it has caused the building to be defective.
5.8 If the customer, despite being aware of a defect, continues to use the item, he loses all claims to subsequent remedy and warranty claims, even in respect of a defect that worsens as a result.
5.9 The customer must report obvious defects in writing in accordance with § 377 of the German Commercial Code (HGB). Otherwise, no claim for defects may be asserted. Sending off the complaint on time shall suffice to comply with the deadline.
5.10 Warranty claims are ruled out in the following cases: inappropriate and/or improper use, incorrect operation, faulty installation or commissioning by the customer or third party, incorrect or negligent treatment, in particular due to excessive or incorrect use or any other action for which we are not at fault.
5.11 If, after conclusion of the contract, the scope of delivery or service is changed at the request of the customer and the nature or suitability of the delivery item or the work to be manufactured by us is as a result impaired within the meaning of §§ 434, 633 of the German Civil Code (BGB), then the customer shall lose its rights to claims for defects as the impairment is due to requests for change on the part of the customer.
6. Data protection, security, protection of classified information and confidentiality
6.1 The contractor must adhere strictly to our safety instructions for external companies as well as, in the case of orders regarding classified materials, the Federal Ministry of Economics and Technology’s manual for protecting classified information in industry, as amended.
6.2 GE&PM GmbH reserves its proprietary rights and copyrights to illustrations, drawings, calculations or other documents as well as models and samples.
6.3 They may not be made accessible to third parties without the express consent of GE&PM GmbH. They are to be used exclusively for the fulfilment of the concluded contract and to be returned, unsolicited, to GE&PM GmbH after its completion.
7. Other legal liabilities
7.1 In addition, GE&PM GmbH shall only be liable for personal injuries for which it is responsible as well as for actions caused by intent or gross negligence, in accordance with statutory provisions.
7.2 Excluded is any liability for damages which did not occur directly to the goods themselves and which exceeds the scope of damage foreseeable by GE&PM GmbH. GE&PM GmbH shall not be liable for consequential damages such as, in particular, production downtime, interruption of business, loss of profit, and loss of information and data. The same applies to compensation for usage claims in accordance with § 284 of the German Civil Code (BGB).
7.3 GE&PM GmbH’s level of liability shall – except in cases where damage is caused intentionally or due to gross negligence, as well as in cases of personal injury – be limited to the amount of the particular concrete order value with the customer. If, in exceptional cases, the order value does not correspond to typically foreseeable damages, the level of the liability is in any case limited to foreseeable, typically occurring damages. Any liability exemptions and limitations shall equally apply to personal claims against our employees, associates, statutory representatives or agents. The mandatory provisions of the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
7.4 If a penalty – of whatever nature, e.g., for default or related to achievement of performance values – has been agreed with the customer, this shall be a lump-sum compensation, which shall settle all claims of the customer (e.g., to compensation over and above this) arising from the item in question.
7.5 Claims for damages expire at the latest at the end of the warranty period.
8. Place of performance, acceptance of the work
The place of performance is the registered office of GE&PM GmbH or, in the case of delivery of materials, the distributing factory or, in the case of deliveries requiring assembly, the place of construction of the work. If you have not issued acceptance within 7 working days of completion, acceptance is deemed to have been given. This does not apply if there are grounds for acceptance being delayed which fall within GE&PM’s area of responsibility.
9. Installation and assembly
Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly by GE&PM GmbH:
9.1 The customer must at his own expense take care of, and in good time provide: – all earthworks, structures and other unrelated ancillary work, including specialist and auxiliary personnel, building materials and tools required for this, – the necessary commodities and materials for assembly and commissioning, such as scaffolding, lifting and other equipment, fuel and lubricants, – energy and water at the point of use, including connections, heating and lighting – sufficiently large, suitable, dry and lockable spaces at the place of assembly for storing machine parts, equipment, materials, tools, etc., and appropriate working and recreation spaces for the assembly personnel.
9.2 Before commencement of services by GE&PM GmbH, the customer must provide the necessary information about the location of concealed electricity gas and water pipes or similar systems.
9.3 The customer must certify the duration of the assembly personnel’s working hours to GE&PM GmbH weekly as well as the completion of installation, assembly or commissioning, without delay.
9.4 If GE&PM GmbH demands acceptance of the delivery or service after completion, the customer must give this within two weeks. If the customer allows the 2-week deadline to elapse or if the delivery or service of GE&PM GmbH is put to use, this is the equivalent of issuing acceptance.
10. Applicable law and place of jurisdiction
10.1 The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship with the customer – including certificates, bills of exchange or cheques – is the location of the registered office of GE&PM GmbH.
10.2 The law of the Federal Republic of Germany shall apply, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
11. Partial invalidity.
If individual provisions of a contract concerning deliveries and services of which these provisions are a component are or become invalid, the validity of the remaining provisions of the contract in question shall not be affected.