General Terms and Conditions of Sale
of GPS Gesellschaft für Produktionssysteme GmbH
These General Terms and Conditions of Sale shall only apply to entrepreneurs in the exercise of their commercial or independent professional activity and to legal entities under public law. They shall apply to all business transactions between GPS Gesellschaft für Produktionssysteme GmbH (hereinafter referred to as "GPS" named) and the Purchaser, even if they are not mentioned in subsequent contracts. They apply accordingly to work and services. Acceptance of the delivered products shall be replaced by acceptance in the case of work performances and by acceptance of the service in the case of services.
Any conflicting, additional or deviating terms and conditions of the Purchaser shall not become part of the contract unless GPS has agreed to their validity in writing. These General Terms and Conditions of Sale shall also apply if GPS carries out a delivery to the Purchaser without reservation in the knowledge of the Purchaser's conflicting, additional or deviating terms and conditions.
Any conflicting, additional or deviating agreements to these General Terms and Conditions of Sale made between GPS and the Purchaser for the execution of a contract shall be set forth in writing in the contract. This shall also apply to the cancellation of this written form requirement.
Rights to which GPS is entitled according to statutory provisions or other agreements beyond these General Terms and Conditions of Sale shall remain unaffected.
Conclusion of Contract
Offers from GPS are subject to change and non-binding.
Illustrations, drawings, specifications of weight, dimensions, performance and consumption as well as other descriptions of the products from the documents belonging to the offer are only approximately authoritative, unless they are expressly designated as binding. They do not constitute an agreement or guarantee of a corresponding quality or durability of the products, unless they have been expressly agreed as such in writing. Nor shall the Purchaser's expectations with respect to the Products or their use constitute an agreement or guarantee.
GPS reserves all property rights, copyrights and other industrial property rights to all offer documents. Such documents may not be made accessible to third parties. The purchaser shall return all offer documents to GPS immediately upon GPS' request if they are no longer required in the ordinary course of business. The same shall apply in particular to all other documents, drafts, samples, patterns and models.
An order shall only become binding if it has been confirmed by GPS by a written order confirmation within two weeks or if GPS executes the order, in particular GPS complies with the order by sending the ordered products. An order confirmation made with the help of automatic equipment, in which signature and name reproduction are missing, is considered as in writing. As far as the order confirmation contains obvious mistakes, spelling or calculation errors, it is not binding for GPS.
GPS's silence in response to offers, orders, requests or other declarations of the Purchaser shall only be deemed to constitute consent if this has been agreed in writing in advance.
If the financial circumstances of the purchaser deteriorate significantly or if the justified application for the opening of insolvency or comparable proceedings against the assets of the purchaser is rejected due to lack of assets, GPS shall be entitled to withdraw from the contract in whole or in part.
Scope of Delivery
The written order confirmation of GPS is decisive for the scope of delivery. Changes of the scope of delivery by the purchaser require the written confirmation of GPS to become effective. GPS reserves the right to make changes to the design and shape of the products, insofar as the deviations are customary in the industry, or insofar as the deviations are within the DIN tolerances, or insofar as the changes are not substantial and are reasonable for the purchaser. The same applies to the choice of material, specification and design.
Delivery in parts is permissible, unless the delivery in parts is not reasonable for the purchaser considering the interests of GPS.
Delivery time and transportation
The agreement of delivery times (delivery periods and dates) requires the written form. Delivery periods and dates are non-binding unless they have been designated as binding by GPS in writing beforehand.
The delivery period shall commence upon conclusion of the contract, but not before complete provision of the documents, approvals and releases to be procured by the Purchaser, clarification of all technical issues and receipt of an agreed advance payment or, in the case of a foreign transaction, after receipt of full payment. In the case of a delivery date, this shall be postponed in a reasonable manner if the Purchaser does not provide the documents and approvals to be procured by him in due time, if releases are not granted in due time, if all technical questions are not completely clarified in due time or if the agreed down payment or, in the case of a foreign transaction, the entire payment is not received by GPS in full. The observance of the delivery time requires the timely and proper fulfillment of the other obligations of the purchaser.
The delivery time shall be deemed to have been complied with if the products have left the factory by the expiry of the agreed delivery time or GPS has notified the purchaser that the products are ready for collection or dispatch. The observance of the delivery time is subject to proper, in particular timely, self-delivery by GPS, unless GPS is responsible for the reason of the improper self-delivery. GPS is entitled to withdraw from the contract in case of improper self-delivery. GPS will inform the purchaser without delay if GPS exercises its right to withdraw from the contract and will refund any advance payments made by the purchaser.
In the event of a delay in delivery, the Purchaser shall be entitled to withdraw from the contract after the fruitless expiry of a reasonable period of grace granted to GPS after the occurrence of the delay in delivery.
The choice of the transport route and the mode of shipment shall be made at GPS's sole discretion, unless otherwise agreed in writing. GPS will ship the products uninsured, unless otherwise agreed in writing. Any costs for insurance will be charged separately to the purchaser.
If GPS has concluded a framework agreement with the Purchaser for future deliveries with fixed delivery times and the Purchaser does not call off the products in due time, GPS shall be entitled to deliver and invoice the products, to withdraw from the contract or to claim damages or reimbursement of expenses after a reasonable grace period set by GPS has expired to no avail. The obligation to pay damages or reimbursement of expenses shall not apply if the Purchaser is not responsible for the failure to call off the Products in due time.
In the case of cross-border deliveries, the Purchaser shall make all declarations and perform all acts necessary for export from Germany and import into the country of destination in good time vis-à-vis the competent authorities, in particular procure the documents required for customs clearance and comply with the requirements for any export controls or other restrictions on marketability.
The deliveries are subject to the proviso that there are no obstacles to fulfillment due to national or international regulations, in particular export control regulations as well as embargoes or other sanctions.
Delays due to export controls shall extend delivery times accordingly; delivery dates shall be postponed accordingly.
Prices and Payment
In the absence of a special agreement, the prices are ex works and do not include shipping or packaging costs, insurance, statutory taxes, customs duties or other charges. The costs incurred in this respect, in particular the costs for packaging and transport of the products, shall be invoiced separately to the purchaser. In case of a net order value of less than EUR 50, GPS is entitled to charge a surcharge for small quantities of net EUR 10 (exceptions: orders via the online store). The legal value added tax will be shown separately in the invoice in the legal amount valid on the day of invoicing.
Orders for which fixed prices have not been expressly agreed and for which the delivery time is determined to be at least three months after the conclusion of the contract shall be invoiced at the list prices of GPS applicable on the day of delivery. The entry of the list price applicable on the day of the order in an order form or an order confirmation shall not be deemed to be an agreement on a fixed price. In case of price increases of more than 5 % the purchaser is entitled to withdraw from the contract in this respect. Upon GPS's request, the Purchaser shall declare without delay whether it will exercise its right of withdrawal.
In the absence of a special agreement, the delivery price is to be paid net immediately after delivery and receipt of invoice. The day of payment shall be the day on which GPS can finally dispose of the delivery price. In case of default of payment, the purchaser shall pay default interest in the amount of 9 % points above the respective base interest rate p.a.. Further claims of GPS remain unaffected.
In the case of foreign transactions, payment shall be made prior to delivery, notwithstanding paragraph 3, unless otherwise agreed in writing in advance.
Transfer of risk
The risk of accidental loss and accidental deterioration shall pass to the Purchaser as soon as the products are handed over to the person carrying out the transport or leave the warehouse of GPS for the purpose of shipment. In case of collection by the Purchaser, the risk shall pass to the Purchaser upon notification of readiness for collection. Sentence 1 and sentence 2 shall also apply if the delivery is made in parts or GPS has taken over further services, such as the transport of the products to the purchaser.
If the Purchaser is in default of acceptance, GPS may demand compensation for the damage incurred as well as compensation for any additional expenses, unless the Purchaser is not responsible for the non-acceptance of the products. In particular, GPS is entitled to store the products at the expense of the purchaser during the delay in acceptance. The costs for the storage of the products shall be lumped at 0.5 % of the net invoice value per calendar week or part thereof. Further claims of GPS remain unaffected. The purchaser is entitled to prove that GPS has not incurred any or lower costs. The same applies if the purchaser violates other duties to cooperate, unless the purchaser is not responsible for the violation of other duties to cooperate. The risk of accidental loss or accidental deterioration of the products shall pass to the purchaser at the latest at the point in time at which the purchaser is in default of acceptance. GPS is entitled to dispose of the products otherwise after the fruitless expiry of a reasonable period of time set by GPS and to supply the purchaser with a reasonably extended period of time.
If the shipment is delayed due to circumstances for which GPS is not responsible, the risk shall pass to the Purchaser upon notification of readiness for shipment.
Delivered products are to be accepted by the purchaser without prejudice to his claims for defects even if they show insignificant defects.
Claims for defects
The purchaser's rights in case of defects require that he has inspected the delivered products upon receipt, as far as reasonable also by a trial processing or trial use, and has notified GPS of obvious defects in text form (e.g. by letter, fax or e-mail) without undue delay, at the latest two weeks after receipt of the products. Hidden defects must be notified to GPS in text form immediately after their discovery. The purchaser must describe the defects in text form when notifying GPS. Furthermore, the purchaser must comply with the specifications, notes, guidelines and conditions in the technical notes and other documents of GPS concerning the individual products. Claims for defects arising as a result of the breach of this obligation are excluded.
In case of defects of the products, GPS shall be entitled, at its own option, to supplementary performance by remedying the defect or by delivering defect-free products. In the event of subsequent performance, GPS shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs. Replaced products shall become property of GPS and shall be returned to GPS.
If GPS is not willing or able to effect subsequent performance, the Purchaser may, at its option and without prejudice to any claims for damages or reimbursement of expenses, rescind the contract or reduce the delivery price. The same shall apply if the subsequent performance fails, is unreasonable for the Purchaser or is delayed beyond reasonable periods for reasons for which GPS is responsible.
The purchaser's right of withdrawal is excluded if he is unable to return the received performance and this is not based on the fact that the return is impossible due to the nature of the received performance, or if GPS is responsible for the defect or if the defect has only become apparent during the processing or transformation of the products. The right of withdrawal is further excluded if GPS is not responsible for the defect and if the purchaser has to pay compensation instead of the return.
No claims for defects shall arise for defects due to natural wear and tear, in particular in the case of wearing parts, improper handling, assembly, use or storage or improperly performed modifications or repairs of the products by the Purchaser or third parties. The same shall apply to defects attributable to the Purchaser or to a technical cause other than the original defect.
Claims of the Purchaser for reimbursement of expenses instead of damages in lieu of performance shall be excluded unless the expenses would also have been incurred by a reasonable third party.
GPS does not assume any warranties, in particular no quality or durability warranties, unless otherwise agreed in writing in individual cases.
The limitation period for the Purchaser's claims based on Defects shall be one year, unless a sale of consumer goods takes place at the end of the supply chain. If the defective products have been used for a building in accordance with their customary use and have caused its defectiveness or if it is a defect in a building, the limitation period shall be five years. The limitation period of one year shall also apply to claims in tort based on a defect in the products. The limitation period begins with the delivery of the products. The limitation period of one year does not apply to the unlimited liability of GPS for damages resulting from the breach of a warranty or from injury to life, body or health, for intent and gross negligence and for product defects or as far as GPS has assumed a procurement risk. A statement by GPS regarding a claim for defects asserted by the Purchaser shall not be deemed to be an entry into negotiations regarding the claim or the circumstances giving rise to the claim, provided that the claim for defects is rejected by GPS in its entirety.
GPS shall be liable without limitation for damages resulting from the breach of a warranty or from injury to life, body or health. The same applies to intent and gross negligence or as far as GPS has assumed a procurement risk. GPS is only liable for slight negligence if essential obligations are violated which result from the nature of the contract and which are of particular importance for the achievement of the purpose of the contract. In case of breach of such duties, delay and impossibility the liability of GPS is limited to such damages which can typically be expected to occur within the scope of this contract. A mandatory legal liability for product defects remains unaffected.
As far as the liability of GPS is excluded or limited, this shall also apply to the personal liability of the employees, representatives and vicarious agents of GPS.
The purchaser will not modify the products, in particular he will not modify or remove existing warnings about dangers in case of improper use of the products. In the event of a breach of this obligation, the Purchaser shall indemnify GPS internally against product liability claims of third parties, unless the Purchaser is not responsible for the modification of the products.
If GPS is prompted to issue a product recall or a product warning due to a product defect of the Products, the Purchaser shall cooperate to the best of its ability in the measures which GPS deems necessary and expedient and shall support GPS in this respect, in particular in the determination of the necessary customer data. The purchaser is obliged to bear the costs of the product recall or warning, unless he is not responsible for the product defect according to the principles of product liability law. Further claims of GPS remain unaffected.
The Purchaser shall inform GPS without undue delay in text form (e.g. by letter, fax or e-mail) of any risks in the use of the products and possible product defects of which it becomes aware.
If GPS is prevented by force majeure from fulfilling its contractual obligations, in particular from delivering the products, GPS shall be released from its obligation to perform for the duration of the impediment as well as a reasonable start-up period without being obliged to compensate the purchaser. The same shall apply if the fulfilment of GPS' obligations is made unreasonably difficult or temporarily impossible due to unforeseeable circumstances for which GPS is not responsible, in particular due to industrial disputes, official measures, energy shortage, delivery obstacles at a supplier or essential operational disturbances. This shall also apply if these circumstances occur at a sub-supplier. As far as GPS is released from the obligation to deliver, GPS shall return any advance payments made by the purchaser.
GPS shall be entitled to withdraw from the contract after the expiry of a reasonable period of time if such impediment lasts for more than four months and GPS is no longer interested in the performance of the contract as a result of the impediment. Upon the Purchaser's request, GPS will declare after the expiry of the period whether GPS will make use of its right to withdraw from the contract or whether GPS will deliver the products within a reasonable period of time.
Retention of title
The delivered products remain the property of GPS until full payment of the delivery price and all claims to which GPS is entitled against the purchaser from the business relationship. The purchaser is obliged to treat the products subject to retention of title with care for the duration of the retention of title. In particular, he is obliged to insure the products at his own expense against fire, water and theft damages sufficiently for the invoice value. The purchaser has to prove the conclusion of the insurance upon GPS's request. The purchaser already now assigns to GPS all claims for compensation from this insurance. GPS hereby accepts the assignment. If the assignment should not be admissible, the purchaser hereby instructs the insurer to make any payments only to GPS. Further claims of GPS remain unaffected.
The purchaser is only permitted to sell the products subject to retention of title in the ordinary course of business. Apart from that, the purchaser is not entitled to pledge the products subject to retention of title, to assign them by way of security or to make any other dispositions endangering the property of GPS. In case of seizure or other interventions of third parties the purchaser has to inform GPS immediately in text form (e.g. by letter, fax or e-mail) and to give all necessary information, to inform the third party about the property rights of GPS and to cooperate in the measures of GPS for the protection of the products subject to retention of title. As far as the third party is not able to reimburse GPS for the judicial and extrajudicial costs for the enforcement of GPS' property rights, the purchaser shall be obliged to compensate GPS for the resulting loss, unless the purchaser is not responsible for the breach of duty.
The purchaser already now assigns the claims from the resale of the products with all ancillary rights to GPS, irrespective of whether the products subject to retention of title are resold without or after processing. GPS accepts this assignment already now. If an assignment should not be permissible, the purchaser hereby instructs the third-party debtor to make any payments only to GPS. The purchaser is revocably authorized to collect the claims assigned to GPS in trust for GPS in his own name. The collected amounts are to be paid to GPS immediately. GPS may revoke the purchaser's authorization to collect as well as the purchaser's authorization to resell for good cause, in particular if the purchaser does not duly meet its payment obligations towards GPS, is in default of payment, stops its payments, or if the opening of insolvency proceedings or comparable proceedings for the settlement of debts against the purchaser's assets is applied for by the purchaser or if the substantiated application of a third party for the opening of insolvency proceedings or comparable proceedings for the settlement of debts against the purchaser's assets is rejected due to lack of assets. In the event of a blanket assignment by the Purchaser, the claims assigned to GPS shall be expressly excluded.
Upon GPS's request, the purchaser is obliged to inform the third party debtor immediately of the assignment and to provide GPS with the information and documents required for collection.
In case of behavior contrary to the contract, in particular in case of default of payment by the purchaser, GPS shall be entitled, without prejudice to its other rights, to withdraw from the contract after expiration of a reasonable grace period set by GPS. The purchaser shall immediately grant GPS or its agents access to the products subject to retention of title and surrender them. After due notice GPS may otherwise dispose of the products subject to retention of title in order to satisfy its due claims against the purchaser.
The processing or transformation of the products subject to retention of title by the purchaser shall always be carried out for GPS. The expectant right of the purchaser to the products subject to retention of title continues in the processed or transformed item. If the products are processed or transformed together with other items not belonging to GPS, GPS shall acquire co-ownership of the new item in proportion of the value of the delivered products to the other processed items at the time of processing or transformation. The same shall apply if the products are combined or mixed with other items not belonging to GPS in such a way that GPS loses its full ownership. The purchaser shall keep the new items for GPS. In all other respects, the same provisions shall apply to the item created by processing or transformation as well as combination or mixing as to the products subject to retention of title.
GPS shall be obliged to release the securities to which GPS is entitled upon the Purchaser's request to the extent that the realizable value of the securities, taking into account customary bank valuation discounts, exceeds GPS's claims from the business relationship with the Purchaser by more than 10%. The valuation shall be based on the invoice value of the products subject to retention of title and on the nominal value in the case of receivables. The selection of the securities to be released is incumbent on GPS in detail.
In the case of deliveries to other legal systems in which this retention of title provision does not have the same security effect as in the Federal Republic of Germany, the Purchaser hereby grants GPS a corresponding security interest. If further measures are required for this purpose, the Purchaser shall do everything in its power to grant GPS such a security interest without undue delay. The purchaser shall cooperate in all measures which are necessary and conducive to the effectiveness and enforceability of such security interest.
If, in addition to the delivery, GPS is also entrusted with the assembly, this shall take place on the basis of an independent contract for work and services independent of the delivery.
The special written assembly provisions of GPS shall apply to such an assembly contract.
The parties are obligated to keep secret all information which becomes accessible to them and which is designated as confidential or which is recognizable as business or trade secrets according to other circumstances for a period of five years from delivery and, unless required for the business relationship, to neither record nor pass on or utilize it.
The obligation to maintain secrecy shall not apply if it can be proven that the information was already known to the receiving party prior to the commencement of the contractual relationship or was generally known or generally accessible prior to the commencement of the contractual relationship or becomes generally known or accessible through no fault of the receiving party. The burden of proof shall be borne by the receiving party.
The parties shall ensure by suitable contractual agreements with the employees and agents working for them, in particular their freelancers and the work contractors and service providers working for them, that they also refrain from any exploitation, disclosure or unauthorized recording of such business and trade secrets for a period of five years from delivery.
The parties are obligated to observe the statutory provisions on data protection, in particular the EU Data Protection Regulation (DSGVO), when executing the contract and to impose compliance with these provisions on their employees.
The parties shall process the personal data received (names and contact details of the respective contact persons) exclusively for the purpose of fulfilling the contract and shall protect them by technical security measures (Art. 32 DSGVO) adapted to the current state of the art. The parties are obliged to delete the personal data as soon as their processing is no longer necessary. Any statutory retention obligations remain unaffected by this.
Should GPS process personal data on behalf of the Ordering Party within the scope of the execution of the contract, the parties shall conclude an agreement on commissioned processing pursuant to Art. 28 DSGVO.
The transfer of rights and obligations of the purchaser to third parties is only possible with the prior written consent of GPS.
Counterclaims of the purchaser shall only entitle him to set-off if they have been legally established or are undisputed. The customer may only assert a right of retention if his counterclaim is based on the same contractual relationship.
The legal relations of the purchaser with GPS shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The exclusive place of jurisdiction for all disputes arising from the business relationship between GPS and the purchaser is the registered office of GPS. GPS is also entitled to file suit at the registered office of the purchaser as well as at any other admissible place of jurisdiction. Arbitration clauses are contradicted.
Place of performance for all services of the purchaser and GPS is the registered office of GPS, unless otherwise agreed.
The contract language is German.
Should any provision of these General Terms and Conditions of Sale be or become invalid or unenforceable in whole or in part, or should there be a gap in these General Terms and Conditions of Sale, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provision, the valid or enforceable provision that comes closest to the purpose of the invalid or unenforceable provision shall be deemed agreed. In the event of a loophole, that provision shall be deemed agreed which corresponds to what would have been agreed in accordance with the purpose of these General Terms and Conditions of Sale if the parties had considered the matter from the outset.
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