- All quotations, orders and deliveries of Grob GmbH Antriebstechnik (hereinafter referred to as the Contractor) are based on our conditions as set out below as well as any separate contractual agreements. The Customer’s deviating conditions of purchase do not become part of the contract even if we accept the order.
- A contract comes into existence – in the absence of a special agreement – with the written confirmation of order. We have the right to dispatch the ordered goods even without a confirmation of order.
- In the case of differences between the confirmation of order and the quotation or the purchase order, the Contractor’s written confirmation of order shall be decisive if the confirmation of order is not contradicted within 10 days of it being dispatched.
- Grob Antriebstechnik GmbH retains the ownership and copyright to samples, cost estimates, calculations, drawings and similar information of a physical kind, even in electronic form. They may be made accessible to third parties only with the express written agreement of the Contractor.
II. Price and payment
- The Contractor’s quotations are always non-binding. Prices are ex works excluding packaging, loading, freight and customs duties, plus the applicable statutory Value Added Tax. Prices are in Euros. If another currency should have been agreed upon, then all changes in the rate of exchange of the foreign currency to the Euro occurring after the date of the confirmation of order shall be to the disadvantage of the Customer.
- Payments are to be made without any deduction within 30 days after delivery. The acceptance of bills of exchange and cheques requires the express prior agreement of the Contractor. It takes place only as payment. Discount, exchange, collection and bank charges as well as taxes shall be at the expense of the provider of the bill of exchange or cheque.
- In case of late payment the Contractor shall be entitled to charge interest on default at the respective rate of interest on current accounts of its house bank, but at least 8% above the base lending rate of the European Central Bank. This also applies if the Contractor grants a respite for payment.
- If, following conclusion of the contract, the Contractor becomes aware of circumstances regarding the Customer’s creditworthiness that significantly endanger the execution of the contract, then the Contractor can withhold its obligated performance until the Customer pays for the performance or provides securities.
- The Customer has the right to withhold payments or to set them off against counterclaims only to the extent that his counterclaims are undisputed or have been legally established.
- The extent of the obligations arises from the Contractor’s written confirmation of order. Documents such as brochures, catalogues, drawings, illustrations, descriptions and technical data as well as samples, weight and size specifications, are non-binding unless the Contractor has acknowledged them in the confirmation of order or in some other written form.
- Partial deliveries are permissible if these are reasonable for the Customer.
- If no fixed delivery date is expressly stated in the Contractor’s confirmation of order, then the stated delivery deadlines and dates are non-binding. If an agreed fixed date is exceeded by more than one month for reasons for which the Contractor is responsible, then the Customer shall be entitled to set the Contractor a reasonable grace period of not less than 6 weeks and can withdraw from the contract upon the fruitless expiry of said grace period.
- The prerequisite for delivery within the deadline is the punctual clarification of all technical and financial questions, the punctual receipt of all documents to be supplied by the Customer and the adherence to the agreed terms of payment or the receipt of the agreed credit.
- The adherence to the delivery deadline is also conditional on the correct and punctual supply to ourselves. The Contractor shall inform the Customer as soon as possible if becomes apparent that there will be delays.
- If the failure to meet the delivery deadline is attributable to force majeure, to labour disputes or to other events outside the Contractor’s sphere of influence, then the delivery time shall be extended appropriately. If the delivery time is extended by more than 3 months as a result thereof, then both contracting parties shall have the right to withdraw from the contract.
- If the delivery or the acceptance of the delivery item is delayed for reasons for which the Customer is responsible, then the costs incurred due to the delay shall be charged to him commencing one month after notification of readiness for dispatch or readiness for acceptance, whichever the case may be.
IV. Transfer of risk and acceptance
- Loading and dispatch, even if carried out by the Contractor's employees shall take place at the Customer's risk. The risk is transferred to the Customer on sending the notification of readiness to deliver.
- If the delivery is not called off despite notification of readiness for delivery, then the Contractor shall be entitled at its own discretion to store the goods at the Customer’s risk and expense or to have them stored on behalf of the Customer at the latter’s expense.
- If the Customer does not accept goods or performances offered or delivered to him, then the Contractor can set a grace period of 4 weeks for the acceptance. On expiry of the grace period the Contractor shall be entitled to withdraw from the contract and/or to demand compensation of damages. The claim for compensation of damages amounts, without prejudice to the possibility of proving higher damages, to at least 15% of the agreed price.
- If the Customer so wishes, we will provide insurance coverage for the transport; the costs incurred shall be borne by the Customer.
V. Retention of title
- The items delivered remain the property of the Contractor until full payment has been made of all claims owing to the Contractor from all business relations with the Customer. The inclusion of individual demands into a current invoice as well as the drawing of the balance and its acknowledgment do not affect the retention of title.
- In the case that the Contractor should exercise its right to take back the goods delivered under retention of title, the Customer shall grant the Contractor irrevocable and unimpaired access to the rooms in which the Contractor’s property is situated.
- The Customer is entitled to resell the items delivered under retention of title only in the course of normal business. The pawning or assignment of the items as security is not permitted.
- In the case of resale or any processing, the Customer assigns to the Contractor here and now the claims due to the Customer from the Customer's own purchaser to the amount of the Contractor’s claim, without the necessity for any further or express declaration of assignment. The Contractor hereby accepts said assignment.
- Notwithstanding the assignment and the simultaneously existing right of collection, the Customer is authorised to obtain the assigned claims as long as he complies with his obligations arising from his entire business relations with the Contractor.
- The application for the opening of insolvency proceedings entitles the Contractor to withdraw from the contract and to demand the immediate return of the delivery item.
- The Customer has to pay collected monies into a separate account and keep them for the Contractor. On demand by the Contractor the Customer must inform the Contractor of the details of the assigned claims required for the paying in, in particular the name and address of the debtor as well as the exact description of the claim and must hand over the necessary documents and inform his purchasers of the assignment.
- The Customer is not authorised to dispose in any way of the claim assigned in advance to the Contractor, in particular not to place the claim in a current account or to conclude a factoring contract covering the claim. If for some reason placement in a current account should nevertheless effectively take place, then the Customer assigns to the Contractor here and now the claims arising in his favour from the individual balances as well as the right to terminate the current account. The Contractor accepts said assignment.
- If the item delivered by the Contractor is processed by the Customer to form a new item, then the processing takes place on behalf of the Contractor without any obligations arising therefrom for the Contractor. If joint ownership results from the processing, connection or mixing of the object delivered under retention with other goods not belonging to the Contractor, then the Contractor acquires proportional joint ownership of the new item created. The Customer must inform the Contractor on demand of the whereabouts of the newly created object.
- If the value of the existing securities exceeds the Contractor’s total claims by more than 20%, then the securities available to the Contractor are reduced accordingly.
- The Contractor is entitled, following a prior threat and the setting of an appropriate deadline and notwithstanding the Customer’s payment obligations, which continue to exist, to utilise the object retrieved by it in the best possible way by free-handed sale.
- The Customer is obliged to handle the ordered object with care; in particular, he is obliged to insure it sufficiently at his own expense and at its new value against fire, water damage and theft. If maintenance and inspection work is necessary, the Customer must carry this out promptly at his own expense.
VI. Warranty claims and compensation of damages
The Contractor is liable for material defects and defects of title of the delivery item to the exclusion of further claims subject to section VII. numbers 2 and 3 as follows:
- Parts that turn out to be defective as a result of a circumstance dating back to before the transfer of risk shall be rectified or replaced by flawless parts free of charge, whichever the Contractor chooses. The discovery of such defects must be reported immediately to the Contractor in writing. Replaced parts become the property of the Contractor. After communicating with the Contractor, the Customer must allow the Contractor the necessary time and opportunity to carry out all rectifications and replacement deliveries that appear to the Contractor to be necessary. Otherwise the Contractor is released from liability for the consequences resulting therefrom.
- The Contractor is liable for material defects and defects of title of the delivery item to the exclusion of further claims subject to section VII. numbers 2 and 3 as follows:
- The Customer has the right within the scope of the legal regulations to withdraw from the contract if the Contractor – taking into account the legal exceptions – allows a deadline that it has been set for rectification or replacement due to a material defect to expire fruitlessly.
- If the defect is only insignificant, the Customer only has the right to a reduction in the contractually agreed price. The right to a reduction in the contractually agreed price is otherwise excluded.
Defects of title:
- If the use of the delivery item leads to the infringement of commercial property rights or copyrights within Germany, then the supplier shall in principle and at its own expense obtain the rights for the Customer to use the delivery item further or shall modify it for the Customer in such a way that there is no further infringement of property rights.
- a) the Customer has informed the Contractor immediately about the property right or copyright infringement claims asserted, b) the Customer supports the Contractor to a reasonable extent in defending against the claims asserted, or enables the Contractor to perform the modifications in accordance with Section VI. number 1, c) all defence measures including out-of-court rulings are reserved for the Contractor, d) the defect of title is not based on an instruction by the Customer and e) the infringement of rights was not caused by the Customer modifying the delivery item without authorisation or using it in a manner contrary to the contract.
- If the delivery item cannot be used by the Customer for the contractual purpose due to the supplier’s fault as a consequence of incorrect manufacture or proposals made and advice given before or after the conclusion of the contract or due to the breach of other auxiliary contract obligations, then the regulations set out in Section VI. and section VII. numbers 2 and 3 apply accordingly, to the exclusion of further claims on the part of the Customer.
- For damages not occurring on the delivery item itself, the Contractor is liable, whatever the legal grounds, only a) in case of wilful intent, b) in case of gross negligence on the part of the owner/the departments, management employees or vicarious agents, c) in case of the culpable injury to life, limb and health, d) in case of defects that the Contractor has fraudulently concealed or whose absence it had assured, e) in case of defects of the delivery item to the extent that the Contractor is liable in accordance with the Product Liability Act for personal injuries or damage to property caused by privately used objects.
- In the case of a culpable breach of contractual obligations, including default, the Contractor’s liability is limited to the foreseeable, contractually typical and direct average damages according to the type of goods. Apart from the breach of so-called material obligations, liability on the part of the Contractor is excluded for breaches of obligation based on slight negligence of its legal representatives or vicarious agents.
- Liability for compensation of damages extending beyond that provided for in §6 Section (6) to Section (4) is excluded, irrespective of the legal nature of the claim asserted.
- The regulation in accordance with Section (1) does not apply to claims in accordance with §1 and §4 of the Product Liability Act. The same applies to initial inability or culpable impossibility.
- To the extent that our liability is excluded or limited, this also applies to the personal liability of our employees, workers, representatives and vicarious agents.
VIII. Statute of limitations
All claims on the part of the Customer – on whatever legal grounds – lapse 12 months after delivery. The legally stipulated periods apply to claims for compensation of damages in accordance with Section VII. numbers 2 a) to e). They also apply to defects in a building or to delivery items that have been used for a building in accordance with their normal purpose of use and have caused the building to be defective.
IX. Applicable law and place of jurisdiction
- The laws of the Federal Republic of Germany apply to all legal relations between the supplier and the Customer to the exclusion of conflict rules.
- The place of jurisdiction for all disputes in connection with deliveries or performances of the Contractor as well as for any disputes over pre-contractual obligations or the coming into existence of the contract is – between merchants – the local court responsible for the subject matter at the place of the Contractor’s registered office.
- The Contractor shall also have the right if it so chooses to take legal action at the location of the Customer’s registered office.