I. Scope of Application
These general terms and conditions apply to all – including future – transactions with the buyer, who is not a consumer. General terms and conditions of the buyer are contradicted. The following terms and conditions shall be deemed to be the sole binding legal basis at the latest upon acceptance without objection of the items delivered by Gremco GmbH and/or the services rendered by Gremco GmbH.
IV. Transfer of risk
The risk of loss and deterioration of delivery items shall pass to the purchaser at the moment Gremco GmbH has handed over the items to the forwarding agent or the carrier or at the moment Gremco GmbH has informed the purchaser that the items are ready for dispatch. This shall also apply if Gremco GmbH has assumed the costs of shipment to the place of destination.
IX. Liability for defects
- The supplier shall be liable for ensuring that the delivered item complies with the agreed quality and is free of defects of title at the time of transfer of risk. In the absence of an agreement on quality, the supplier shall only be liable for the fact that the delivered item is suitable for normal use and has a quality which is usual for items of the same type and which the purchaser can expect according to the type of item. Insignificant deviations shall be disregarded.
- The Supplier shall remain entitled to make constructive changes to the goods insofar as the agreed quality or suitability for normal use is not impaired thereby.
- The Buyer shall lose the right to invoke a defect if he does not inspect the delivered item immediately after delivery and does not immediately give written notice of any defect which he has discovered or should have discovered. The complaint must specify the exact nature of the material defect. The same shall apply to defects of title.
- If there is a substantial defect, the following shall apply exclusively:
- The Purchaser may demand as supplementary performance the delivery of a defect-free item (replacement delivery) within a reasonable period of time, concurrently with the return of the defective item in accordance with the statutory provisions.
- The supplier may refuse subsequent performance in particular if it is only possible at disproportionate cost or if it is impossible due to the nature of the item or the defect.
- The Supplier shall not have to reimburse the expenses required for the purpose of subsequent performance if and to the extent that such expenses increase because the Purchaser has taken the item to a place other than the contractually agreed destination after the passing of risk or has made use of it in a manner not foreseeable under the contract.
- If the Supplier refuses subsequent performance or if subsequent performance finally fails, which is rebuttably presumed after more than three attempts at subsequent performance within a reasonable period of time, the Purchaser may rescind the contract or demand a price reduction; the Purchaser shall lose the right to rescind the contract if it does not exercise it within a reasonable period of time.
- The Purchaser may only claim damages under the additional conditions set out in Clause X. The Supplier shall only be obliged to compensate for consequential damages, in particular loss of profit, in cases of intent and gross negligence.
- Guarantees of the supplier must be made in writing or in electronic form to be effective. The Purchaser may, at its option, assert either the claims under the warranty or the claims for defects pursuant to Clause IX, 4.
- Claims for defects of the purchaser are subject to a limitation period of 1 year. The period begins with delivery. Sections 438 para. 1 no. 2, 479 para. 2 and 634 a para. 1 no. 2 BGB shall remain unaffected.
XI. Documents, Confidentiality
- Documents, such as illustrations, plans, sketches, drawings, descriptions, weight, performance and dimension specifications, calculations, etc., which are made available to the purchaser by Gremco GmbH when submitting the offer or in connection with the execution of the contract, are and shall remain the property of Gremco GmbH. They shall be treated as strictly confidential and may not be made accessible to third parties.
- The purchaser may not use the documents and information provided to him for any purpose other than that provided for in the contract. Any use for non-contractual purposes shall require the written consent of Gremco GmbH. The Purchaser shall be liable for any improper or illegal use and shall also assume liability for its employees, staff, subcontractors or customers.
XII. Industrial property rights, copyrights
- If third parties assert justified claims against the purchaser due to infringement of an industrial property right or copyright by items delivered by Gremco GmbH and used in accordance with the contract, the following shall apply in addition to Clauses IX and X:
- Gremco GmbH shall, as supplementary performance, at its own expense either modify the delivered item in such a way that the third party’s property right is no longer infringed or procure a license from the owner of the property right or deliver a replacement item. If this is not possible for Gremco GmbH under reasonable conditions and within a reasonable period of time, the buyer shall be entitled to withdraw from the contract or to reduce the purchase price. The purchaser shall only be entitled to claims for damages under the conditions and to the extent stipulated in clauses IX and X.
- The obligations of Gremco GmbH regulated under lit. a) shall only exist if the purchaser immediately notifies Gremco GmbH in writing of the asserted claims of third parties, at the latest within 10 days from receipt of the warning of property rights, does not acknowledge an infringement vis-à-vis the third party and all defensive measures and settlement negotiations remain reserved to Gremco GmbH.
- Claims of the buyer shall be excluded if and to the extent the buyer is responsible for the infringement of the property right. Claims of the buyer shall also be excluded if and to the extent that the infringement of the property right is caused by special specifications of the buyer, by an application not foreseeable by Gremco GmbH or by the fact that the object in question is modified by the buyer or used together with objects not supplied by Gremco GmbH.
XIII. Product Information
Information provided by Gremco GmbH regarding the function and use of items shall, in the absence of any agreement to the contrary, be deemed to be general guidelines only. Since the products of Gremco GmbH have a wide range of applications and can be used in very different ways, it is incumbent upon the buyer to carefully test the items himself and to determine their suitability for the intended purpose in his own tests. As a rule, Gremco GmbH can only support the purchaser in this in terms of application technology.
XIV. Place of performance, applicable law, place of jurisdiction
- Place of performance for all obligations arising from the business relationship or an individual contract shall be Augsburg, unless expressly agreed otherwise.
- The contracts between Gremco GmbH and the buyer shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- Place of jurisdiction shall be Augsburg. Gremco GmbH may also bring an action against the buyer at the buyer’s general place of jurisdiction. This shall also apply to disputes in proceedings concerning documents, bills of exchange or cheques.
Commercial Register for Augsburg HRB 13377 Managing Directors: Nikolas Langes, Simon Specka As of: July 2020
Only the German version of the General Terms and Conditions is legally binding. The English version is for information purposes only. See German version here.