General Terms and Conditions of Business
Max Holder GmbH
Last updated: May 2018
§ 1 Scope of application
1. These General Terms and Conditions of Delivery and Services (hereinafter also being referred to as "GTC") apply to all our fields of activity. This means that these GTC apply to the delivery of goods, in particular spare parts, to works, in particular maintenance services, and to services in general.
2. These GTC apply exclusively in our relationship with the customer. The application of any terms and conditions whatsoever applied by the customer is hereby expressly objected; such terms and conditions shall not even become part of the contract, when we render delivery or services without reservation while knowing of deviating or complementary terms and conditions. These GTC also apply to all future transactions, as well as to all business contacts with customers, for example to the start of contract negotiations or the initiation of a contract, even if they have not been expressly agreed or if no express reference is made to them again.
3. Any agreements concluded earlier, including earlier versions of our purchasing conditions are revoked by these GTC
4. In case of a contract for the benefit of a third party or a contract protecting the interest of a third party these GTC, especially the limitation of liability contained therein, apply with regard to the respective third party as well.
5. The acceptance of our services and goods by the customer shall be deemed to constitute acceptance of the applicability of these GTC.
§ 2 Conclusion of contract
1. Unless otherwise agreed, our quotes are subject to confirmation. Any order by the customer shall be regarded as a legally binding offer to conclude the contract. We have the right to accept the offer of the customer within a period of 14 calendar days.
2. A binding contract will only be concluded, when the order has been confirmed by us in writing or when we start with the execution of the order.
§ 3 Scope of delivery and service, performance Deadlines
1. The scope of our deliveries or services shall be conclusively determined by our written quote or order confirmation. Side agreements and amendments must be confirmed in writing by the management board. If our quote or order confirmation is based on data, provided by the customer (data, figures, illustrations, drawings, weight and size specifications, etc.), then our order confirmation shall be binding only if these data were accurate. If it becomes apparent after conclusion of the contract that the order cannot be executed in accordance with the specifications of the customer, then we shall be entitled to withdraw from the contract, provided and to the extent that the customer is not prepared to accept a substitute solution proposed by us and to bear any actually incurred additional costs.
2. For all deliveries and services, we shall be entitled to make partial performance, insofar as this is reasonable for the customer. We shall furthermore be entitled to make use of subcontractors to comply with our contractual obligations.
3. Periods and deadlines for delivery and performance are always indications that aim to be as accurate as possible but are generally non-binding. The start of the delivery period, as well as compliance with delivery deadlines is dependent on the customer performing the cooperative acts he is obliged to perform punctually and correctly, providing all the documents required of him and making any agreed advance payments.
4. If the customer has agreed to make an advance payment, delivery shall be made only after we have received the purchase price in full.
5. The data provided in our quotes and order confirmations, such as drawings or weight, size and capacity specifications, are only approximate indications unless expressly agreed otherwise. We reserve all rights in drawings, designs, samples or similar preparatory works.
6. Default on our part shall be excluded in case of force majeure or other accidental and exceptional circumstances. In these cases, we shall be entitled to withdraw from the contract even if we are already in default at this stage. In particular, we shall not be in default for delays in delivery, to the extent that such delays are caused by incorrect or late delivery by our suppliers for reasons for which we are not responsible. In case of obstacles of a passing nature, the delivery dates or periods will be postponed for as long as the obstacle persists plus an adequate lead time.
7. As soon as we become aware of a risk of inability to perform on the part of the customer, we shall be entitled to make delivery or perform the agreed services only against advance payment or security. In cases where we are contractually obliged to make an advance performance, we are entitled to refuse the performance owed by us or to withdraw from the contract, if it becomes apparent after conclusion of the contract that our claim for consideration is at risk due to the lacking capacity to perform on the part of the customer and if the customer does not make an advance payment or provides a security within a reasonable deadline set by us. This is in particular the case if the consideration owed to us is at risk due to the poor financial situation of the customer or if other impediments to performance threaten, e.g. due to export or import bans, war events or the insolvency of suppliers.
8. A transport insurance for the goods to be shipped will only be obtained upon explicit request of the customer. The transport insurance will then be concluded in the name and at the expense of the customer.
9. The subject-matter of the performance is only the transfer of ownership and the surrender of the purchased goods pursuant to § 7. The assembly, installation or a configuration of the purchased goods is not owed, unless expressly so agreed.
10. Whether we are in delivery default will be determined according to statutory law. However, a reminder letter is necessary in any event. In the event of delivery default, the customer may demand - in addition to delivery and in accordance with the statutory law - reimbursement of any loss incurred owing to the delay. However, such claim may not exceed 0.5 % of the value of the delivery concerned per week of default and no more than 5 % on aggregate, unless we have acted with intent or gross negligence. This does not affect the customer's right to withdraw from the contract and/or to assert damage claims for non-fulfilment pursuant to § 9 once a reasonable subsequent deadline has expired.
11. In the event that the customer is in default of acceptance or if he violates other duties to cooperate or if delivery is delayed for any other reason for which the customer is responsible, we are entitled to request compensation for any damages caused thereby including additional expenses, especially storage costs. We are entitled to charge a flat rate compensation in the amount of 1% of the value of the shipment per calendar week. The proof of higher damages and our statutory claims remain unaffected; the flat rate is however to be deducted from our claims. It shall be up to the customer to prove that we have suffered no loss or only a substantially smaller loss.
§ 4 Passing of risk
The risk of loss or deterioration of the goods passes to the customer upon handing over of the goods for shipping to the customer, even if delivery is made in parts. If the shipment is delayed for reasons that lie in the person of the customer, then the risk passes to the customer already with notification of readiness for shipment.
§ 5 Prices
1. Our prices are net prices, and deliveries are always made "ex works" (EXW Incoterms 2010), unless otherwise agreed. In case of services, the prices relate to the performance of the services at the agreed place of performance. Upon invoicing, the value-added tax at the statutory rate will be added.
2. In case of an agreed delivery period of more than four months between the time of confirmation of the order and performance we shall be entitled to pass on any increase in our costs in this period to the customer to the corresponding extent. The same shall apply if a delivery period of less than four months has been agreed, but if the delivery is delayed for reasons that fall within the sphere of responsibility of the customer and through which we are able to deliver only more than four months after the order confirmation.
§ 6 Payment Terms
1. Unless otherwise agreed by contract, our claim for payment shall be due without deduction within 30 days after receipt of the delivery or after full performance. If we make our deliveries or provide our services in the definable partial segments, we shall be entitled to invoice for each partial segment a corresponding part of the remuneration.
2. If payment is made within 14 days after delivery or complete provision of our services, a discount of 2% is granted, provided that none of the customer's other payments are overdue.
3. Without express agreement, the customer shall not be entitled to make deductions.
4. If the customer is in default of payment, then the customer shall be obliged to compensate the resulting default damage and especially pay interest at the rate of nine (9) percentage points over the base interest rate. If the customer is in default of payment with a due amount or partial amount for more than 14 days, the customer is in breach of obligations resulting from retention of title, or if there is a considerable deterioration in the financial circumstances of the customer after conclusion of the contract , then the entire residual amount of all outstanding claims is immediately due for payment. All other claims shall remain unaffected.
5. Payment by means of a bill of exchange or acceptances requires the explicit consent and shall be only on account of payment.
6. The customer may only set off against our payment claims with undisputed claims or claims confirmed in a final and binding judgment. § 9 (2c) shall remain unaffected. The same applies to the exercise of a right of retention. The customer is only entitled to exercise a right of retention, if it is based on the same contractual relationship.
7. The assignment of claims against us by the customer requires our prior written consent, which we will deny for compelling reasons only.
8. We have the right to assign our claims against the customer/buyer to a third party.
9. If the customer/buyer is in default of payment, the customer/buyer is still obliged to reimburse all fees, charges and expenses incurred in connection with any legally successful legal prosecution outside of Germany.
§ 7 Retention of title
1. Until full and complete payment of all our current and future claims under the contract concluded and a current business relationship (secured claims), we retain title to the goods delivered.
2. Prior to full payment of the secured claims, the goods delivered subject to retention of title may neither be pledged to third parties nor transferred as security. In case of a seizure or other actions of third parties, the customer shall notify us without undue delay in writing, so that we are able to raise a third-party objection pursuant to § 771 of the German civil procedural code (ZPO). As far as such third party is unable to reimburse us, the court and out-of-court costs of the claim according to § 771 ZPO, the customer is liable for the loss occurred to us.
3. In case of a breach of contract by the customer, in particular in case of non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and require the return of the goods.
4. The customer is authorised to sell and/or process the goods delivered subject to retention of title in the ordinary course of business. In this case, the following provisions apply additionally.
a) If the customer combines or mixes any goods owned by us with other items, to form a new single item in such a way that one of the new items must be regarded as the principal item, we shall have pro rata co-title in the new item created, such co-title being in the ratio of the value of the goods owned by us to the value of the combined or mixed items at the time of such combining or mixing, and the customer shall transfer title and possession therein herewith. We hereby accept this assignment and transfer. The customer shall hold the item created by combination or mixing in trust for us free of charge.
b) If the customer or a third party acting on behalf of the customer processes or modifies the goods belonging to us, this shall be deemed to have been carried out for us. If the customer acquires sole title in the new item created by way of such processing or modification, the parties shall be deemed to have agreed that the customer herewith transfers to us the title therein in the ratio of the value of goods which belong to us to the value of the combination or modification and we shall accept such transfer herewith. The customer shall hold goods in which we have sole or co-title, which have been thus created in custody for us free of charge. If the goods in which we have title have not been inseparably combined or mixed with other items or otherwise processed or modified since supply, the amount which we billed for the goods including the applicable statutory rate shall be deemed to be its value at the time of the combination, mixing or processing.
c) The customer has the right to resell the goods in the ordinary course of business. In any case of resale, the customer must reserve its title to the goods in relation to its purchaser until the purchase price has been paid in full. In case the customer re-sells the supplied goods, the customer hereby assigns to us any claims which may arise against its own customers from resale of the goods supplied by us together with all ancillary rights until such time as all claims have been satisfied in full. We hereby accept this assignment. If the customer and its own purchasers operate a current account, the customer shall assign to us the acknowledged balance in order to secure our claims and, in the event that the customer's purchasers should become insolvent, the "causal" balance from the current account. We accept this assignment. This clause on the assignment of claims also applies to the item newly created by processing, modification, combination or mixing. The assignment applies to the customer's entire claim against its purchasers in each case.
d) Notwithstanding our right to collect the Customer remains entitled to collect the assigned claims. We undertake not to collect the claim as long as the customer fulfils his payment obligations to us, is not in default of payment, is not subject to insolvency proceedings and there is no other deficiency in the customer's performance capacity and solvency. However, if this is the case we can request that the customer informs us of the assigned claims and their debtors, provides all information which is necessary for the collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
e) If the realisable value of the securities exceeds the claims to be secured by more than a total of 10 %, we will release securities at our discretion upon request of the customer.
5. The customer is obliged to handle the goods delivered subject to retention of title with good care. The customer shall adequately insure the goods delivered subject to retention of title at our request and its own expense against damage through fire, water and theft. If maintenance and inspection work is required, the customer shall carry out such work at his own expense.
6. If the reservation of title is invalid or unenforceable under the law of the country in which the goods are located, the parties shall be deemed to have agreed to whatever security corresponds most closely under the law of that country. The customer shall assist and support us in arranging the security. If the effectiveness of this retention of title depends on its registration, e.g. in public registers in the country of the customer, we shall be entitled and authorised by the customer to effect such registration at the expense of the customer. The customer is obliged to provide all acts of cooperation required for such registration free of charge.
§ 8 Customer's duties of cooperation
1. The customer shall assist us and our employees to a reasonable, customary extent. In cases where we have to provide works or services through our employees at the company of the customer, the assistance required by us may also include - at our request - the provision of offices and workspaces equipped with computers and phones at the expense of the customer.
2. Materials, information and data that we require to perform shall be provided by the customer. Data and data carriers must be technically fault free. To the extent that special statutory or in-house safety regulations apply at the premises of the customer, the customer shall inform us accordingly prior to our performance.
3. Instructions of the customer to our employees regarding the specific performance shall be excluded, unless the instructions relate to safety requirements and operational regulations applicable at the premises of the customer. Instructions relating to specific issues in connection with the provision of works or services by us shall be issued to our contact persons appointed for the project, not to the employees instructed to perform such works or services. We shall at all times decide independently about the necessary measures as part of our obligation to perform.
§ 9 Liability for defects and general liability
1. The customer's claims due to defects of the work or goods to be delivered by us, in particular claims for cure, reduction of the contract price, withdrawal from the contract and damages as well as any other claims for damages of the customer shall be determined in accordance with the relevant statutory provisions, except as provided for by the exceptions stipulated in this § 9. The warranty provisions hereinafter do not apply to the provision of services pursuant to § 611 of the German civil code (BGB); statutory law remains unaffected.
2. Customer claims for cure because of defects in the work or goods to be delivered by us shall be governed by the following provisions:
a) If the goods delivered are defective, we can first choose whether we will provide a cure by eliminating the defect (repair) or if we will deliver a non-defective item (replacement). The right to refuse the selected type of cure within the scope of the statutory provisions remains unaffected.
b) Subsequent fulfilment does not include removal of the defective item or re-installation of the non-defective or repaired item or reimbursement of the associated costs if our original obligations did not include installation. However, this does not apply to the delivery of goods to consumers or resellers who sell directly or indirectly to consumers.
c) We are entitled to make the owed cure dependent on the customer paying the due purchase price. However, the customer is entitled to retain a reasonable portion of the purchase price relative to the defect.
d) The customer shall allow us the necessary time and opportunity to make the required cure, and shall in particular hand over the rejected goods for verification purposes. In case of replacement, the customer shall return the defective item in accordance with the statutory provisions.
e) The costs incurred in connection with the verification and cure, in particular transport, travel, labour and material costs, shall be borne by us in cases where an actual defect has occurred. If a request for a cure of a defect by the customer proves to be unjustified, we may demand reimbursement of the costs incurred hereby from the customer, unless the customer has not acted culpably.
3. Claims of the customer, especially the claims for a cure of the defect, withdrawal from the contract, a reduction of the purchase price and claims for damages require that the customer has complied with his statutory duties of inspection and notification (§§ 377, 381 of the German Commercial Code (HGB)). According to these, the customer is obliged to inspect the delivered goods immediately after receipt and the customer shall inform us in writing of any obvious defects without undue delay, at the latest however within five (5) working days after delivery. The customer must notify us in writing of any defects, which cannot be recognised in the due course of an intake inspection without undue delay, however, at the latest within three (3) working days after discovery of the defect. Apart from that, the statutory provisions apply. If the customer fails to perform a proper inspection and/or a notification of the defect, our liability for the unreported defect is excluded. This exclusion does not apply in cases where we have fraudulently concealed the defect or have assumed a guarantee of quality.
4. We shall be liable:
a) for damages resulting from injury to life, physical integrity or health based on an intentional or negligent breach of duty by us or based on an intentional or negligent breach of duty by our legal representatives, executive staff or vicarious agents;
b) for damages based on an intentional or grossly negligent breach of duty by us or based on an intentional or grossly negligent breach of duty by our legal representatives, executive employees or vicarious agents of the seller;
c) for damages based on the intentional or negligent breach of essential contractual obligations whose fulfilment makes the due performance of the contract possible in the first place and on which the contractual partner can reasonably expect to be able to rely on ("cardinal obligations") by us, by our legal representatives, executive employees or vicarious agents;
d) for damages that fall within the scope of a guarantee expressly granted (warranty) or a guarantee as to the quality or durability. To the extent that we, our legal representatives, our executive staff or vicarious agents have not acted with intent regarding b) and c), our liability is limited to the foreseeable damages typical for the type of contract. Claims for damages against the seller based on mandatory statutory liability, for example under the Product Liability Act, remain unaffected by the above provisions and shall exist to the statutory extent within the statutory time limits.
5. In all other cases, any liability - irrespective of the legal grounds - is excluded.
6. Recourse claims by the customer are excluded unless the customer is a reseller who sells directly or indirectly to consumers.
7. If third parties are commissioned or involved in the initiation or settlement of the contractual obligation between the customer and the seller, then the above limitations of warranty and liability shall also apply vis-à-vis these third parties.
8. Any claims, with the exception of claims for damages pursuant to 4 a) to 4 c) above become time-barred 12 months after delivery, unless we assumed a guarantee, fraudulently conceal a defect or §§ 478 as read with 445b German Civil Code prescribes longer deadlines (right of recourse for the purchase of consumer goods)).
§ 10 Confidentiality
1. The customer and us ("the Parties") undertake not to disclose any information designated as confidential or other information that is evidently a business or trade secret and of which the Parties become aware in connection with the contract and shall refrain from recording this information, from disclosing it to third parties or to make use of it in any other way except with the express written consent or to the extent required to achieve the objectives of the contract. This duty of confidentiality shall remain in effect for an additional period of five years after complete fulfilment or termination of the order.
2. Not covered by this provision are information
a) that were already known to a Party prior to the start of the contract negotiations or which have been disclosed by a third party as non-confidential, provided that this third party did not, for its part, infringe confidentiality obligations;
b) that the Parties each developed independently of each other;
c) that have been made public without fault or involvement of the Parties;
d) that must be disclosed by virtue of mandatory legal obligations or upon administrative or judicial orders. In the latter case, the disclosing Party shall inform the other Party without undue delay prior to the disclosure. Other statutory duties regarding confidentiality remain unaffected by the above.
§ 11 Miscellaneous: Place of performance, place of jurisdiction, applicable law, data processing, contract language, severability clause
1. The place of performance and exclusive place of jurisdiction for all disputes arising between the Parties out of the contractual relations is Metzingen if the customer is an entrepreneur, legal person under public law or a special fund under public law or if the customer does not have a general place of jurisdiction within the Federal Republic of Germany or if the customer's place of jurisdiction is outside the Federal Republic of Germany. As an exception to this provision, we are also entitled to assert claims against the customer at the customer's general place of jurisdiction. An entrepreneur is any business that is registered in the commercial register or operates a trade and requires commercially organised business. The customer has his general place of jurisdiction abroad if the customer's registered office is abroad.
2. Personal data shall be processed within the scope of the relevant statutory provisions.
3. The language of the contract shall be German. In the event that the Parties use another language in addition to German, the German text shall prevail.
4. If a provision in these General Terms and Conditions of Delivery and Payment or a provision as part of other agreements between the Parties is or becomes invalid, the validity of any other provision is not affected thereby. The contractual and other legal relationships with our customers shall be governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).