Terms and Conditions

© W. Gessmann GmbH, Eppingerstr. 221, D-74211 Leingarten As of January 2017

General Terms and Conditions for Sales and Delivery (DE)

I. General Provisions

1. These General Terms and Conditions (hereinafter: “GTC”) shall exclusively govern the legal relationship between the Supplier and the Purchaser in connection with the Supplier’s deliveries and/or services (hereinafter: “Deliveries”). The Purchaser’s general terms and conditions shall apply only to the extent that the Supplier has expressly agreed to them in writing. The scope of the Deliveries shall be determined by the mutually agreed-upon written statements of both parties.
2. The Supplier reserves its rights of ownership and copyright to cost estimates, drawings, and other documents (hereinafter referred to as “Documents”) without restriction. The Documents may only be made available to third parties with the Supplier’s prior consent and, if the order is not placed with the Supplier, must be returned to the Supplier immediately upon request. Sentences 1 and 2 apply mutatis mutandis to the Purchaser’s documents; however, these may be made available to third parties to whom the Supplier has lawfully subcontracted deliveries.
3. The Customer has the non-exclusive right to use the standard software and firmware with the agreed-upon performance characteristics in unmodified form on the agreed-upon devices. The Customer may create a backup copy of the standard software without an express agreement.
4. Partial deliveries are permitted, provided they are reasonable for the purchaser.
5. The term „claims for damages“ in these General Terms and Conditions also includes claims for reimbursement of futile expenses.

II. Prices, Payment Terms, and Setoff

1. Prices are ex works, excluding packaging, plus the applicable statutory sales tax.
2. If the supplier has undertaken to perform installation or assembly, and unless otherwise agreed, the purchaser shall bear, in addition to the agreed compensation, all necessary incidental costs, such as travel and transportation expenses, as well as per diem allowances.
3. Payments must be made free of charges to the supplier's paying agent.
4. The customer may only set off claims that are undisputed or have been legally established.

III. Retention of Title

1. The items delivered (goods subject to retention of title) shall remain the property of the Supplier until all claims to which the Supplier is entitled against the Purchaser arising from the business relationship have been satisfied. To the extent that the value of all security interests to which the supplier is entitled exceeds the amount of all secured claims by more than 10 %, the supplier shall, at the purchaser’s request, release a corresponding portion of the security interests; the Supplier shall have the right to choose which security interests to release.
2. The purchaser is entitled to resell the goods owned by us (goods subject to retention of title) in the ordinary course of business. However, the purchaser hereby assigns to us all claims arising from such resale, regardless of whether the goods subject to retention of title are resold as is or after processing, or whether they are incorporated into real property or movable property. If the goods subject to retention of title are resold after processing or together with other goods that do not belong to us, or if they are incorporated into real property or movable property, the Customer’s claim against its buyers shall be deemed assigned in the amount of the delivery price for the goods subject to retention of title agreed upon between the Customer and us.
3. In the event of attachments, seizures, or other orders or interventions by third parties, the purchaser must notify the supplier immediately.
4. In the event of a breach of obligations by the purchaser, particularly in the event of late payment, the supplier is entitled, after the unsuccessful expiration of a reasonable deadline set for the purchaser to fulfill its obligations, not only to reclaim the goods but also to rescind the contract; the statutory provisions regarding the dispensability of setting a deadline remain unaffected. The purchaser is obligated to return the goods.
The supplier’s repossession of, or assertion of, the retention of title, or the seizure of the goods subject to retention of title, does not constitute a withdrawal from the contract, unless the supplier has expressly stated so.

IV. Delivery Deadlines; Delay

1. Compliance with delivery deadlines is contingent upon the timely receipt of all documents to be provided by the purchaser, all necessary permits and approvals—in particular drawings—as well as the purchaser’s compliance with the agreed-upon terms of payment and other obligations. If these conditions are not met in a timely manner, the deadlines shall be extended accordingly; this shall not apply if the supplier is responsible for the delay.
2. If failure to meet the deadlines is due to force majeure, such as mobilization, war, or civil unrest, or to similar events, such as a strike or lockout, the deadlines shall be extended accordingly. The same applies in the event that the supplier fails to deliver on time or in accordance with the terms of the contract.
3. If the supplier is in default, the purchaser—provided the purchaser can demonstrate that it has suffered damage as a result—may claim compensation of 0.5 % for each full week of default, up to a maximum total of 5 % of the price for that portion of the deliveries which could not be put into proper operation due to the delay.
4. Claims for damages by the purchaser due to a delay in delivery, as well as claims for damages in lieu of performance that exceed the limits specified in No. 3, are excluded in all cases of delayed delivery, even after the expiration of any delivery deadline set for the supplier. This does not apply in cases of willful misconduct,
liability is mandatory in cases of gross negligence or injury to life, limb, or health. The purchaser may rescind the contract in accordance with statutory provisions only to the extent that the delay in delivery is attributable to the supplier. The foregoing provisions do not entail a shift in the burden of proof to the detriment of the purchaser.
5. Upon the supplier’s request, the purchaser is obligated to state, within a reasonable period of time, whether, due to the delay in delivery,
withdraws from the contract or insists on delivery.
6. If, at the customer’s request, shipment or delivery is delayed by more than one month after notification that the goods are ready for shipment, the customer may be charged a storage fee of 0.5 % of the price of the items in the delivery for each additional month or portion thereof, up to a maximum total of 5 %. The contracting parties remain free to provide evidence of higher or lower storage costs.

V. Transfer of Risk

1. Even in the case of carriage-paid delivery, the risk passes to the purchaser as follows:
* for deliveries that do not include installation or assembly, once they have been shipped or picked up. At the customer’s request and expense, the supplier will insure the deliveries against standard transportation risks;
* For deliveries that include installation or assembly, on the day the goods are accepted at the customer’s premises or, if agreed, after successful trial operation.
2. If shipment, delivery, commencement, installation or assembly, acceptance at the customer’s premises, or trial operation is delayed for reasons attributable to the customer, or if the customer is in default of acceptance for any other reason, the risk shall pass to
to the customer.

VI. Installation and Assembly

Unless otherwise agreed in writing, the following provisions apply to installation and assembly:
1. The purchaser shall, at its own expense, provide the following in a timely manner:
a) all earthwork, construction work, and other ancillary work not related to the industry, including the skilled and unskilled labor, building materials, and tools required for such work,
(b) the supplies and materials required for installation and commissioning, such as scaffolding, hoisting equipment, and other devices, as well as fuels
and lubricants,
c) Energy and water at the point of use, including connections, heating, and lighting,
d) at the installation site, sufficiently large, suitable, dry, and lockable rooms for the storage of machine parts, equipment, materials, tools, etc., as well as appropriate work and rest areas for the installation personnel, including sanitary facilities appropriate to the circumstances; Furthermore, to protect the Supplier’s and the installation personnel’s property on the construction site, the Purchaser must take the same measures it would take to protect its own property,
e) Protective clothing and protective equipment required due to special circumstances at the installation site.
1. Before installation work begins, the customer must, without being asked, provide the necessary information regarding the location of concealed electrical, gas, and water lines or similar systems, as well as the required structural data.
2. Before installation or assembly begins, the materials and items required to commence work must be present at the installation or assembly site, and all preparatory work must be sufficiently advanced prior to the start of installation so that the installation or assembly can begin as agreed and be carried out without interruption. Access routes and the installation or assembly site must be leveled and cleared.
3. If installation, assembly, or commissioning is delayed due to circumstances beyond the Supplier’s control, the Purchaser shall bear, to a reasonable extent, the costs associated with the waiting time and any additional travel required by the Supplier or the installation personnel.
4. The purchaser must promptly certify to the supplier, on a weekly basis, the number of hours worked by the installation personnel, as well as the completion of the installation, assembly, or commissioning.
5. If the Supplier requests acceptance of the delivery upon completion, the Purchaser must accept it within two weeks. If this does not occur, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place if the delivery has been put into use—if applicable, following the completion of an agreed-upon testing phase.

VII. Acceptance

The purchaser may not refuse to accept deliveries due to minor defects.

VIII. Material Defects

The supplier is liable for material defects as follows:
1. At the Supplier’s discretion, any parts or services that are found to have a material defect shall be repaired, replaced, or re-performed free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
2. Claims for subsequent performance are subject to a statute of limitations of 12 months from the statutory commencement of the limitation period; the same applies to rescission and reduction. This period does not apply to the extent that the law prescribes longer periods pursuant to §§ 438(1)(2) (structures and items for structures), Section 479(1) (right of recourse), and Section 634a(1)(2) (construction defects) of the German Civil Code (BGB) prescribe longer periods in cases of intent, fraudulent concealment of a defect, or breach of a warranty of quality. The statutory provisions regarding the suspension, interruption, and recommencement of time limits remain unaffected.
3. The customer must report any defects in writing without delay.
4. In the event of a notice of defects, the purchaser may withhold payments to an extent that is reasonably proportionate to the material defects that have occurred. The purchaser may withhold payments only if a complaint regarding a defect is asserted and there is no doubt as to its validity. The purchaser has no right of retention if its claims for defects are time-barred. If the complaint regarding defects was unjustified, the supplier is entitled to demand reimbursement from the purchaser for the expenses it incurred.
5. The supplier must be given the opportunity to remedy the defect within a reasonable period of time.
6. If the remedy fails, the customer may—without prejudice to any claims for damages under Section 10—withdraw from the contract or reduce the payment.
7. Claims for defects do not apply in the case of only minor deviations from the agreed quality, only minor impairment of usability, natural wear and tear, or damage that occurs after the transfer of risk as a result of improper or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building site conditions, or due to special external influences not contemplated by the contract, as well as in the case of non-reproducible software errors. If the purchaser or third parties carry out improper modifications or repair work, no claims for defects shall arise with respect to such work or the resulting consequences.
8. Claims by the purchaser for expenses incurred in connection with subsequent performance—in particular, transportation, travel, labor, and material costs—are excluded to the extent that such expenses increase because the delivered item was subsequently moved to a location other than the purchaser’s place of business, unless such relocation is in accordance with its intended use.
9. The purchaser’s claims for recourse against the supplier pursuant to § 478 BGB (recourse by the business) exist only to the extent that the purchaser has not entered into any agreements with its customer that go beyond the statutory claims for defects. Furthermore, No. 8 applies mutatis mutandis to the scope of the purchaser’s right of recourse against the supplier pursuant to § 478(2) BGB.
10. The customer’s claims for damages arising from a material defect are excluded. This does not apply in cases of fraudulent
Concealment of the defect; failure to comply with a warranty of quality; injury to life, body, health, or liberty; and an intentional or grossly negligent breach of duty by the Supplier. The foregoing provisions do not entail a shift in the burden of proof to the detriment of the Purchaser. Any claims by the Purchaser arising from a material defect that go beyond or differ from those set forth in this Article VIII are excluded.

IX. Industrial Property Rights and Copyrights; Legal Defects

1. Unless otherwise agreed, the supplier is obligated to ensure that the delivery is free of industrial property rights only within the country of the place of delivery and
to infringe the copyrights of third parties (hereinafter: intellectual property rights). If a third party claims infringement of
If the Supplier asserts legitimate claims against the Purchaser regarding intellectual property rights arising from deliveries made by the Supplier and used in accordance with the contract, the Supplier shall be liable to the Purchaser within the period specified in Article VIII, No. 2, as follows:
a) The Supplier shall, at its discretion and at its own expense, either obtain a right of use for the relevant deliveries, modify them so that they do not infringe the intellectual property right, or replace them. If the Supplier is unable to do so on reasonable terms, the Purchaser shall be entitled to the statutory rights of rescission or reduction.
(b) The Supplier’s obligation to pay damages is governed by Article XI.
c) The Supplier’s obligations set forth above shall apply only to the extent that the Purchaser promptly notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge any infringement, and the Supplier retains the right to take all defensive measures and conduct settlement negotiations. If the Purchaser ceases use of the delivery for the purpose of mitigating damages or for other important reasons, the Purchaser is obligated to inform the third party that the cessation of use does not constitute an acknowledgment of an infringement of intellectual property rights.
1. The customer’s claims are excluded to the extent that the customer is responsible for the infringement of intellectual property rights.
2. Claims by the purchaser are further excluded to the extent that the infringement of intellectual property rights is caused by specific requirements of the purchaser, by a use that the supplier could not have foreseen, or by the fact that the delivery has been modified by the purchaser or used in conjunction with products not supplied by the supplier.
3. In the event of infringements of intellectual property rights, the provisions of Article VIII, Nos. 4, 5, and 9 shall apply mutatis mutandis to the purchaser’s claims set forth in No. 1(a).
4. In the event of other legal defects, the provisions of Article VIII shall apply mutatis mutandis.
5. Any claims by the Purchaser against the Supplier and its agents that go beyond or differ from those provided for in this Article IX due to
Claims based on a legal defect are excluded.

X. Impossibility; Contractual Adjustment

1. If delivery is impossible, the purchaser is entitled to claim damages, unless the supplier is not responsible for the impossibility of delivery. However, the purchaser’s claim for damages is limited to 10 % of the value of that part of the delivery which, due to the impossibility, cannot be put into proper operation.
This limitation does not apply in cases where liability is mandatory due to willful misconduct, gross negligence, or injury to life, limb, or health; this does not entail a shift in the burden of proof to the detriment of the purchaser. The purchaser’s right to rescind the contract remains unaffected.
2. If unforeseeable events within the meaning of Article IV, No. 2 significantly alter the economic significance or the scope of the delivery, or have a significant impact on the Supplier’s operations, the contract shall be appropriately adjusted in accordance with the principles of good faith. To the extent that this is not economically justifiable, the supplier shall be entitled to withdraw from the contract. If the supplier wishes to exercise this right of withdrawal, it must notify the purchaser immediately upon becoming aware of the scope of the event, even if an extension of the delivery period had initially been agreed upon with the purchaser.

XI. Other Claims for Damages; Statute of Limitations

1. Claims for damages by the customer, regardless of the legal basis, in particular due to a breach of obligations arising from the contractual relationship
and claims arising from tort are excluded.
2. This does not apply in cases of mandatory liability, e.g., under the Product Liability Act, in cases of willful misconduct or gross negligence, in cases of injury to life, limb, or health, or in cases of a breach of material contractual obligations. However, the claim for damages arising from a breach of material contractual obligations is limited to the contractual—
limited to typical, foreseeable damages, unless there is intent or gross negligence, or liability arises from injury to life, body, or health. The foregoing provisions do not entail a shift in the burden of proof to the detriment of the purchaser.
3. To the extent that the purchaser is entitled to claims for damages, such claims shall be barred by the statute of limitations upon the expiration of the limitation period applicable under Article VIII, No. 2. The same applies to claims by the purchaser in connection with measures taken to prevent damage (e.g., product recalls). For claims for damages under the Product Liability Act, the statutory limitation provisions apply.

XII. Jurisdiction and Governing Law

1. The exclusive venue for all disputes arising directly or indirectly from the contractual relationship shall be the Supplier’s place of business. However, the Supplier is also entitled to bring an action at the Purchaser’s place of business.
2. The legal relationships arising in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

XIII. Binding Nature of the Contract

If any provision of this contract is legally invalid, the remaining provisions shall remain binding on you. This does not apply if upholding the contract would constitute an unreasonable hardship for either party.