National · Transactions with customers in Germany
| Company | GTC GmbH |
|---|---|
| Registered office | Geislingen an der Steige, Germany |
| Business address | Talgraben 44, 73312 Geislingen an der Steige, Germany |
| Plant | Siemensstrasse 4, 73079 Süßen, Germany |
| Commercial register | Local Court of Ulm, HRB 541538 |
| Managing Director | Rolf Schmid |
These terms and conditions apply exclusively to entrepreneurs, legal entities under public law and special funds under public law.
These terms and conditions apply to all contracts, agreements and arrangements concerning deliveries and services (“Transactions”) of GTC GmbH (“GTC”) with all customers in Germany (for Transactions with customers abroad, the General Terms and Conditions of Sale – International apply, available at www.gtc-electronics.com/agb/terms-of-sale-international/) who are commercial enterprises, legal entities under public law, special funds under public law and/or otherwise entrepreneurs (such persons acting in the exercise of their commercial or self-employed professional activity) (“Customer”) — unless GTC and the Customer (“Parties”) have validly agreed otherwise in accordance with these terms and conditions. Where a continuing business relationship exists, these terms and conditions also apply to all future Transactions between the Parties.
All terms and conditions of the Customer are excluded unless they are expressly acknowledged or agreed or correspond to GTC’s terms and conditions; this applies even where GTC performs the Transaction without reservation.
A contract is formed upon GTC’s order confirmation in writing or in text form (including by electronic data interchange and fax); in case of doubt, the nature and scope of the Transactions are determined by GTC’s order confirmation. In the absence of an order confirmation, the contract is formed on the basis of these terms and conditions and GTC’s offer if the Customer accepts deliveries or services without reservation.
Deviations from these terms and conditions upon formation of the contract must be made in writing or in text form (including by electronic data interchange and fax); the same applies to deviations from this form requirement and to amendments after formation of the contract.
All offers are subject to confirmation and the documents belonging to the offers, such as illustrations, drawings and statements of weight and dimensions, are non-binding approximate values unless such details of the offer are expressly designated as binding. Where details of an offer are expressly designated as binding, the Customer may place an order within 14 days of receipt (receipt by GTC being decisive) which GTC may confirm by an order confirmation so as to form a contract.
Changes to the technical design are permissible provided that they do not result in a material change of function or that the Customer demonstrates that the change is unreasonable for it; unreasonableness is excluded where the change constitutes a technical improvement or is required by customary expectations or by statutory or regulatory requirements.
GTC reserves exclusively its unrestricted ownership, its comprehensive rights and all rights of exploitation in the offers, cost estimates, drawings, illustrations, models, plans and other documents relating to the Transactions, as well as in information in tangible and intangible, in particular electronic, form and in all data, experience, know-how, inventions, industrial property rights, designs, samples and trademarks (all of the foregoing “Information”). All Information that is not already in the public domain must be treated as confidential and must not be made accessible to third parties. Tangible and intangible Information must be returned at any time upon request, or without delay if no Transaction comes about, and electronic Information must be deleted without delay. GTC reserves the right to require evidence in the form of a deletion record.
Upon GTC’s request, the Customer shall provide GTC with all particulars required for compliance with statutory requirements and shall support GTC in this respect (for example entry certificate, CE marking, RoHS, REACH). Compliance with export and import conditions as well as with export and import restrictions is incumbent upon the Customer, and the Customer shall notify GTC upon request of all relevant information and shall indemnify GTC against all claims and sanctions in the event that the Customer fails to comply with such conditions and restrictions.
In the absence of a specific agreement, GTC’s prices are understood in EURO ex works (Ex Works Incoterms 2020) at the Süßen site, Siemensstrasse 4, plus any statutory value added tax.
GTC’s payment claims fall due upon formation of the contract and are payable even before GTC has performed in full. Where no advance payment or other payment arrangement has been agreed, payments to GTC shall be made within 14 days of the invoice date net without deduction to GTC’s account before default occurs. The Customer shall raise objections to invoices at the latest within 14 days of receipt of the invoice; otherwise the invoice concerned is deemed approved.
Payments shall be made to GTC’s account and the Customer bears all costs of the payment transfer. Cheques are accepted only on the basis of an express agreement and only on account of performance (not in place of the actual receipt of funds), meaning that they are deemed payment only upon final encashment with the value date of the day on which GTC is able to dispose of the countervalue.
Where GTC renders its deliveries and services only more than four months after the date of formation of the contract and the cost base (in particular labour and material costs) which GTC used for its price quotations to the Customer subsequently increases or decreases significantly, GTC is entitled to adjust its price towards the Customer appropriately. A change of the cost base within the meaning of sentence 1 exists in particular where the prices for labour or for supplied goods or materials increase through no fault of GTC, as well as where customs duties or other import fees rise or where currency parities change severely to GTC’s detriment as against the conditions prevailing on the date of formation of the contract. A price adjustment on account of a cost increase is appropriate if its extent remains within the cost increases that have occurred in the meantime. GTC shall disclose to the Customer upon request the reasons decisive for the price adjustment. If the price adjustment results in an increase of the price of more than 20 % and GTC does not comply within two weeks with a written request of the Customer to limit the price adjustment to 20 %, the Customer is entitled to withdraw from the contract; the Customer has no further claims. Withdrawal must then be declared without delay.
If the Customer is in default of payment, GTC is entitled to demand default interest at the statutory rate (currently 9 % above the base rate) and to charge reminder costs; GTC reserves the right to assert further damage caused by default. GTC is further entitled to withhold the further rendering of deliveries and services and to make it conditional upon payment of all outstanding items by the Customer, to switch generally to advance payment and/or to demand security; GTC is also not obliged to take further measures to meet any delivery dates and quantities (for example purchasing, production preparation and the like). The same applies where the Customer’s financial position deteriorates to such an extent that satisfaction of GTC’s claims appears to be at risk.
The Customer may assert a right of retention against claims of GTC only to the extent that it is based on undisputed claims, claims ready for decision or claims established by a final court judgment arising from the same contractual relationship. Set-off by the Customer is excluded unless the counterclaim has been established by a final court judgment, is ready for decision or is undisputed.
Deliveries are made ex works (Ex Works Incoterms 2020) at the Süßen site, Siemensstrasse 4; GTC is entitled to make partial deliveries and, where applicable, subsequent deliveries to a reasonable extent. Partial and subsequent deliveries are invoiced separately.
The Customer shall provide GTC with forecasts at all times in order to enable GTC to be prepared for possible orders.
Stated delivery dates or delivery periods are non-binding unless expressly designated as binding by GTC. Compliance with particular delivery periods and delivery dates is subject to GTC itself being supplied correctly and in good time, provided that GTC cannot be charged with gross negligence in the selection of the supplier or suppliers or in the specific procurement. If delays become apparent, GTC shall inform the Customer as soon as possible.
Deliveries ex works are performed upon provision of the goods for collection by the Customer. Where goods are loaded onto the Customer’s means of transport by employees of GTC, those employees are deemed to be vicarious agents of the Customer and GTC may invoice the costs to the Customer.
Unless agreed otherwise, any delivery period commences only upon receipt of all documents required for processing the order and upon clarification of all technical and commercial questions between the Parties. In particular, the delivery period depends on the provision of any required official certificates or permits and/or of an agreed advance payment or of an advance payment required under these terms and conditions or of other acts of cooperation by the Customer; where applicable, delivery periods are extended by the period during which the Customer fails to fulfil its contractual obligations and acts of cooperation.
The delivery period is extended appropriately — including during a period of default — upon the occurrence of force majeure and of all unforeseeable impediments arising after formation of the contract for which GTC is not responsible, by the duration of the impediment. This also applies where such circumstances occur at GTC’s suppliers or their upstream suppliers. The foregoing circumstances include in particular monetary and trade policy measures, strike and lockout, official orders or market-related problems in procuring materials and goods, and import and export prohibitions. GTC shall inform the Customer of the beginning and end of such impediments as soon as possible. The Customer may require GTC to declare whether it will withdraw from the contract with effect for the Transactions not performed or will deliver within a reasonable period. If GTC does not make such declaration to the Customer in good time, the Customer may for its part withdraw from the contract with effect for the Transactions not performed; GTC may likewise withdraw without any request by the Customer if the impediments delay the rendering of deliveries and services by more than four months. Any payment of damages by GTC is excluded in these cases. Reversal of deliveries and services already rendered is considered only if the Customer has absolutely no interest in them.
In the event of non-performance or delay, the Customer must set GTC a reasonable additional period. If the Customer acquires a claim for damages against GTC as a result of a delay by GTC under the statutory provisions, such claim is limited to the damage foreseeable at the time of formation of the contract, but to a maximum of 5 % of the value of the outstanding partial or total delivery or service to the extent that, as a result of the delay or non-delivery, it cannot be used by the Customer in good time or in accordance with the contract. This limitation does not apply to the extent that GTC is liable without limitation under these terms and conditions in cases of intent or gross negligence.
If delivery or performance becomes impossible for GTC, the Customer may withdraw from the contract with effect for the Transactions not performed without setting a period. In such a case GTC may likewise withdraw from the contract with effect for the Transactions not performed, provided that it is not responsible for the impossibility. In such cases the Parties may also withdraw with effect for Transactions performed if there is absolutely no interest in the partial delivery and partial performance. Where GTC is responsible for the impossibility, the statutory liability provisions apply in accordance with these terms and conditions.
Where the Customer is required by law to set GTC a reasonable additional period, this remains unaffected by these terms and conditions. A reasonable additional period amounts — except in cases of imminent danger — to at least half of the original delivery period and not less than 20 working days; in cases of imminent danger the period must amount to at least 10 working days.
For the duration of a default of acceptance by the Customer (including in the case of delayed call-offs), GTC is entitled, without prejudice to other rights, to store the goods to be delivered at the Customer’s cost (the same applies where GTC may withhold delivery on account of outstanding payments or a deterioration in the Customer’s financial position); GTC may also instruct a forwarding agent for storage. In addition, GTC is entitled to reimbursement of other necessary additional expenses (such as insurance premiums) in the amount actually incurred; further statutory rights of GTC remain unaffected thereby.
GTC may also request the Customer to accept (or call off) the goods and, after a reasonable additional period, withdraw and assert rights on account of non-performance; without prejudice thereto, GTC may claim liquidated damages amounting to 25 % of the contractually agreed price for the goods not accepted or not called off — the Customer remains entitled to prove that no damage or only lesser damage has occurred.
If the Customer is already in default of acceptance and impossibility or incapacity occurs at GTC during that period, or if the Customer is solely or predominantly responsible for those circumstances, the Customer remains obliged to render the counter-performance.
The risk passes as agreed; otherwise in accordance with these terms and conditions (Ex Works Incoterms 2020) or as soon as the Customer is in default of acceptance.
Unless agreed otherwise, any returns are always made at the cost and risk of the Customer.
The following retention of title serves to secure all existing present and future claims of GTC against the Customer arising from the ongoing business relationship between GTC and the Customer, including all balance claims from current account (hereinafter “Secured Claims”).
All goods delivered by GTC remain the property of GTC until full payment of all Secured Claims. The goods, and the goods taking their place under the following provisions and covered by the retention of title, are hereinafter referred to as the “Reserved Goods”.
In the event of processing, combination or commingling of the Reserved Goods by the Customer with goods of other origin to form a new item or a commingled stock, GTC is entitled to co-ownership thereof, namely in the ratio of the value of the Reserved Goods (final invoice amount including value added tax) at the time of delivery to the value of the other processed, commingled or combined goods (final invoice amount including value added tax) at the time of the treatment, processing, combination or commingling. The co-ownership share is deemed to be Reserved Goods in accordance with the clause on Reserved Goods above. In the event that no such acquisition of ownership should occur at GTC, the Customer hereby transfers to GTC by way of security its future ownership or — in the ratio stated above — its co-ownership of the newly created item or of the commingled stock. GTC accepts this transfer.
If the Reserved Goods are combined with other items to form a single item or are inseparably commingled, and if one of the other items is to be regarded as the principal item, then, to the extent that the principal item belongs to the Customer, the Customer hereby transfers to GTC co-ownership of the single item on a pro rata basis in the ratio of the value of the Reserved Goods (final invoice amount including value added tax) at the time of delivery to the value of the principal item (final invoice amount including value added tax). GTC hereby accepts this transfer. The co-ownership share is deemed to be Reserved Goods in accordance with the clause on Reserved Goods above.
The Customer shall store the Reserved Goods for GTC free of charge. Before full payment of the Secured Claims, the Reserved Goods may neither be pledged to third parties nor transferred by way of security.
The Customer is obliged to handle the Reserved Goods with care. In particular, it is obliged to insure the Reserved Goods at its own cost against damage by fire, water and theft to a sufficient extent at replacement value. Where maintenance and inspection work is required for the proper care of the goods subject to retention of title, the Customer must carry out such work in good time at its own cost through qualified personnel. This applies, however, only to the extent that the costs thereby incurred remain within the customary range.
The Customer undertakes, in the event of seizure, attachment or other dispositions or access by third parties to the Reserved Goods, to point out GTC’s ownership without delay and to notify GTC thereof in writing, in order to enable GTC to enforce its ownership rights, in particular by bringing an action for release of the goods from execution. The Customer bears all judicial or extrajudicial costs which must be incurred in order to lift the access and to recover the Reserved Goods, to the extent that they cannot be collected from third parties.
The Customer is entitled to sell the Reserved Goods delivered in the ordinary course of business if it is ensured that its claims arising from the resale pass to GTC in accordance with the following provisions of this clause on assignment in advance and on the authorisation to collect.
In the event of resale of the Reserved Goods, the Customer hereby assigns to GTC by way of security the claim arising therefrom against the purchaser as well as those claims which take the place of the Reserved Goods or otherwise arise in relation to the Reserved Goods, such as insurance claims or claims in tort in the event of loss or destruction, including all balance claims from current account. GTC hereby accepts this assignment.
If the Customer sells the Reserved Goods together with other goods not delivered by GTC, the assignment of the claim arising from the resale applies only in the amount of the value of the Reserved Goods (final invoice amount including value added tax) at the time of delivery. In the case of the sale of goods in which GTC has co-ownership under the clauses on processing and combination above, the assignment of the claim applies in the amount of that co-ownership share. To the same extent, the Customer also assigns to GTC the claims (including the right to the grant of a security mortgage) which accrue to it against third parties as a result of the combination of the purchased item with a plot of land. If the Customer is itself the owner of the land, the assignment in advance covers to the same extent the claims resulting from the sale of the land or of rights in land.
The Customer is revocably authorised to collect the claims arising from resales in accordance with the foregoing provisions of this clause. GTC is entitled to revoke the authorisation to collect only in accordance with the following clause.
If the Customer fails to fulfil its obligations under the contract with GTC, in particular if it is in default of payment, then
If the realisable value of the securities existing for GTC exceeds GTC’s claims by more than 10 % in total, GTC shall release securities of GTC’s choice at the Customer’s request.
For deliveries and services of EUR 50,000.00 or more, GTC is entitled to request from the Customer an unconditional, unlimited and irrevocable security of a European bank or a bank letter of credit for payment of the price.
The Customer shall examine the deliveries and services without delay after receipt for conformity with the contract, in particular for completeness and quality and, where applicable, for transport damage. Apparent deviations, defects and damage must be notified to GTC without delay, at the latest within 5 working days of receipt, and hidden defects within the same period from discovery, by notice in writing or in text form or in the form of images (including by electronic data interchange and fax) with a detailed explanation; otherwise the warranty lapses. Otherwise the Customer is entitled to the statutory warranty rights for sales and works (supply) performances (not for services) in accordance with the following provisions.
GTC assumes no warranty for unsuitable or improper use, defective assembly or improper commissioning by the Customer or third parties, natural wear and tear, defective or negligent handling or storage, improper maintenance, defective construction work, substitute materials, or chemical, electrochemical or electrical influences, unless GTC is responsible for them.
The warranty applies only in the case of material defects. Defects are material if they impair the fitness or value of the delivery to such an extent that it cannot be used by the Customer in accordance with the quality or use specified in the contract. In the case of immaterial defects, only a reduction of the purchase price is available, in place of further statutory provisions, where a defect has not been remedied by subsequent performance.
Deliveries which are defective upon the passing of risk will, at GTC’s option, be repaired or replaced free of defects (“subsequent performance”). The place of subsequent performance is the original place of delivery. Costs for installation and removal or for removing and fitting defective and subsequently performed deliveries are not borne by GTC.
In order to carry out all subsequent performance necessary in GTC’s reasonable discretion, the Customer shall, after consultation with GTC, grant GTC the time and opportunity required; otherwise the warranty lapses. Only if subsequent performance fails, or in urgent cases of danger to operational safety or in order to avert disproportionately large damage (“imminent danger”), is the Customer entitled, after prior consultation with GTC and after enabling GTC to effect subsequent performance within a very short period, to remedy the defect itself or have it remedied by third parties and to claim from GTC reimbursement of the necessary expenses in accordance with the law.
Subsequent performance is deemed to have failed only after three unsuccessful attempts.
Parts replaced under the warranty become the property of GTC. The warranty provisions of these terms and conditions apply anew to replaced parts, unless the replacement was made merely as a goodwill gesture by GTC.
Where the Customer has a right to withdraw from the contract within the framework of the statutory provisions and in accordance with these terms and conditions, the Customer must declare within ten working days of the occurrence of the conditions whether it may and wishes to withdraw from the contract; otherwise only reduction is available to it in addition to damages in accordance with these terms and conditions.
By way of derogation from the statutory period of two years, the general limitation period for claims arising from material defects and defects of title is one year from delivery. Where acceptance has been agreed, the limitation period commences upon acceptance. However, where the goods are a building or an item which has been used in accordance with its customary manner of use for a building and has caused its defectiveness (building material), the limitation period is five years from delivery in accordance with the statutory provision. Further statutory special provisions on limitation also remain unaffected, in particular for defects of title consisting in a right in rem of a third party on the basis of which surrender of the goods may be demanded, for fraudulently concealed defects and for supplier recourse within a supply chain. The foregoing limitation periods of sales law also apply to contractual and non-contractual claims for damages of the Customer which are based on a defect of the goods, unless the application of the regular statutory limitation period would in the individual case lead to a shorter limitation. Claims for damages of the Customer on account of intent or gross negligence and/or on account of injury to life, body or health as well as under product liability law become time-barred exclusively in accordance with the statutory limitation periods.
GTC is liable for damage suffered by the Customer — on whatever legal grounds — only in the case of intent, gross negligence of its executive bodies or senior employees, culpable injury to life, body and health, defects which have been fraudulently concealed or the absence of which has been guaranteed by GTC, assumption of a procurement risk, and to the extent that liability for personal injury and damage to property arises under product liability law. In the foregoing cases GTC is also liable for vicarious agents, provided that, in addition to GTC’s liability for the vicarious agent under the law, the selection of the vicarious agents was made culpably by GTC — in other cases GTC has no liability once it has assigned its claims against the vicarious agents to the Customer (in these cases the Customer is obliged to accept the assignment).
In the case of slightly negligent breach of material contractual obligations by GTC (obligations the fulfilment of which is essential to the proper performance of the contract in the first place and on the observance of which the Customer may regularly rely), GTC is liable only to a limited extent, namely for the damage typical for the contract and reasonably foreseeable.
In cases other than those stated above, liability of GTC for breaches of duty is excluded.
GTC is liable for impossibility only if it was aware of the impossibility upon formation of the contract or was unaware of it as a result of gross negligence or intent.
To the extent that liability towards GTC is excluded or limited, this applies equally with regard to the personal liability in damages of its employees, workers, staff, representatives and vicarious agents.
Claims for damages against GTC for which liability is limited under these terms and conditions become time-barred one year after the claim arises and the Customer becomes aware thereof.
German law applies exclusively, to the exclusion of the international law on the sale of goods (CISG).
The exclusive place of jurisdiction for disputes arising from the contract or from deliveries and services is the court having jurisdiction for GTC’s registered office. GTC is also entitled to bring proceedings at the Customer’s principal place of business.
The place of performance for all deliveries and services of GTC as well as for payments of the Customer, including for claims arising from cheques, is the Süßen site, Siemensstrasse 4.
Should one or more provisions of the contract or of these terms and conditions be legally invalid in whole or in part, the validity of the contract or of the remaining provisions shall not be affected thereby. The invalid provision or provisions shall be replaced retroactively by a provision which is as close as possible in content and which comes closest to the purpose of the intended provision.
Unless otherwise provided in these terms and conditions or in the contract, the Customer is not entitled to transfer rights under the contract or under these terms and conditions to third parties without GTC’s consent.
These terms and conditions are published in German at www.gtc-electronics.com/agb/verkaufsbedingungen/ and in English at www.gtc-electronics.com/agb/terms-of-sale/. Both language versions apply in their own right; neither takes precedence over the other. For the individual Transaction, the version applies to which GTC’s offer or order confirmation refers and which has been made accessible to the Customer. Where one language version deviates from the other, the version used for the Transaction concerned applies as worded; GTC bears the risk of a deviating translation.
