Graf GmbH
General Terms and Conditions
of Sale and Delivery of GRAF GmbH
§ 1 Scope of application
1.1 The following terms and conditions are the contractual basis of our business relationships with our customers. They shall apply to companies and legal persons under private and public law.
1.2 The following conditions shall apply to all our deliveries of goods and provision of services including additional services such as suggestions, planning aids and consulting services. All orders will be accepted and executed based on these terms and conditions.
1.3 We will not accept our business partners’ general terms and conditions unless we expressly agree to their validity in writing. The customer’s general terms and conditions shall not apply either even if being aware of such terms and conditions, we deliver goods and/or provide services without reservation and without objecting to such general terms and conditions again.
§ 2 Offer and conclusion of contract
2.1 Our offers shall be without engagement and non-binding at all times. The same shall be true for all information provided in our brochures, advertisements or on our website.
2.2 Purchase orders shall not be deemed accepted with binding force unless they have been confirmed by us in writing.
2.3 Any amendments, changes or subsidiary agreements must also be confirmed by us writing to be effective.
3. Scope of obligation to deliver
3.1 For the scope of the delivery, our written order confirmation shall be authoritative.
3.2 Oral subsidiary agreements and undertakings made by our employees and representatives must be confirmed by us to be legally effective.
3.3 Any information provided in public communication, advertising, internet presences, offers and other documentation, in particular pictures, drawings and descriptions of measurements and services shall not be binding for the execution unless they have been expressly confirmed in writing in the order acknowledgement.
4. Plans, design drawings, property rights
4.1 Pursuant to Section 2 Subsection 1 Sub-paragraph 7 of the German Copyright Act, GRAF GmbH has the absolute copyright to all designs, drawings and similar documentation produced by GRAF GmbH, in particular pictures, sketches, plans and technical documents. This right shall not be prejudiced by the payment of the order price nor by handover of copies of the design documentation nor by the delivery of the machine or the tool. Without the express written approval of GRAF GmbH, the documents stated above must neither be copied nor reproduced nor made available to third parties in any other form. The customer shall not be authorised to use the documents itself in order to produce machines and tools itself or have these produced by third parties either completely or in part. With regard to this it shall be irrelevant whether the respective documents were produced by GRAF GmbH itself or by third parties commissioned by GRAF GmbH. GRAF GmbH shall be the unconditional owner of the original documentation at all times.
4.2 Should the customer use patterns, drawings or other information and provide these to GRAF GmbH, the customer shall be solely responsible to GRAF GmbH and third parties for such information not injuring any third parties’ rights. GRAF GmbH shall not be obliged to verify whether the customer by providing the documents and/or GRAF GmbH by executing the customer’s order based on such documents infringes upon any third party’s property rights. Should GRAF GmbH be held liable by third parties due to its use of the documents provided by the customer, the customer shall hold GRAF GmbH harmless and indemnify it against any claims arising from such infringement. The customer shall be responsible in general for the correctness of the data provided by the customer.
4.3 Instruction manuals and drawings which GRAF GmbH hands over to the customer for commissioning and use of the goods delivered shall become the customer’s property. However, the contents provided in such instruction manuals and drawings shall remain GRAF GmbH’s intellectual property. With regard to this, the prohibitions stipulated in Section 4.1 hereof shall apply.
5. Prices
5.1 The prices stated are net prices, shall be calculated in euros and shall apply ex works unless otherwise agreed in writing.
5.2 The applicable VAT, duties and charges (if applicable), costs of packaging, transportation and transportation insurance and assembly, if required, shall be added to the prices unless expressly otherwise agreed in writing. Should the price basis change between order acknowledgement and delivery, in particular due to an increase in material prices, wages, energy prices, supplier prices, turnover and transaction taxes or similar things, GRAF GmbH reserves the right to adapt the price in GRAF GmbH’s fair judgement. If list prices apply to the goods delivered, the list prices valid on the date of delivery shall apply at all times.
6. Terms of payment
6.1 Unless specific credit terms are stated in the order acknowledgements, all invoices shall be payable immediately in general.
6.2 Cheques will only be accepted on account of payment; the costs of discounting and cashing cheques shall be borne by the customer.
6.3 If payments are allowed to be deferred or made later than agreed, interest in the amount of 2 per cent above the applicable base rate of the German Central Bank will be charged for the period between due date and payment without GRAF GmbH having to give notice of default.
6.4 If payment by bill of exchange has been agreed upon or in case of any other grant of deferment of payment, all accounts receivable by GRAF GmbH shall fall due immediately if the customer’s bills of exchange or cheques are protested, if execution is levied upon the customer’s assets or if insolvency proceedings have been applied for or opened.
6.5 Offsetting or withholding of payments shall be excluded, unless the offsetting claim is undisputed or has been expressly recognised or has become res iudicata. Claims for rectification of defects recognised by GRAF GmbH shall in no case entitle the customer to withhold payments.
6.6 Representatives or other agents of GRAF GmbH shall not be entitled to accept payments in general. Exceptions shall only be permitted upon express written confirmation by GRAF GmbH.
7. Packaging
GRAF GmbH shall have the right to pack the goods in the usual manner at the customer’s expense, unless the customer has expressly ordered a different kind of packaging at its own expense in due time. Packaging materials will not be taken back by GRAF GmbH in general.
8. Delivery time
8.1 Terms for delivery shall only be considered approximate standard terms unless they are expressly specified as binding in GRAF GmbH’s order acknowledgement. In general, the delivery time shall not begin to run until all details of the order execution have been clarified and both parties have agreed on all conditions of the transaction. The delivery time shall refer to the completion of the goods in GRAF GmbH’s plant or GRAF GmbH’s notifying the customer that the goods are ready for collection. Delivery times shall not be binding unless the customer has complied with all its contractual obligations, in particular the agreed terms of payment. All delivery times shall be extended in case of unforeseen events beyond GRAF GmbH’s control, such as war, war-like situations, shortage of energy and raw materials, operational breakdowns, industrial action at GRAF GmbH’s factory or its subcontractors’ factories, in particular strikes and lock-outs, delayed delivery by the subcontractor, scrap in GRAF GmbH’s or the subcontractor’s factory and other interruptions of production beyond GRAF GmbH’s control. This shall also apply in case these events occur during the delay of delivery. The same shall apply if any necessary permits from an authority or other permits from third parties required for the performance of deliveries result in delays or if any information from the customer required for the performance of the delivery is missing or the delivery is delayed by any act or failure to act of the customer. GRAF GmbH shall notify the customer of the beginning and end of such impediments and delays as soon as possible.
8.2 Partial deliveries shall be permissible.
8.3 The delivery time shall be deemed observed when the customer’s order has left GRAF GmbH’s factory or, should the customer itself collect the goods at GRAF GmbH’s factory, when GRAF GmbH has notified the customer that the goods are ready for collection.
8.4 The customer shall not be entitled to cancel the contract unless GRAF GmbH is responsible for the failure to comply with the delivery time and unless the reasonable extension granted to GRAF GmbH by the customer has lapsed. The assertion of damage claims for delays shall be excluded.
8. 5 Should the customer fail to collect the goods ordered on the expressly stipulated date of delivery or should the dispatch of the goods be delayed upon the customer’s request, the customer shall be in default of acceptance. Besides its other statutory rights, GRAF GmbH shall be entitled to charge the customer for the storage costs of the goods, beginning one month after GRAF GmbH’s notice of readiness of the goods for dispatch or the customer’s failure to collect the goods at GRAF GmbH’s factory. Should the goods be stored on GRAF GmbH’s premises, the customer shall be liable to pay at least 0.5 per cent of the invoiced amount for each month of storage. The right to furnish evidence of a lower loss shall remain reserved with the customer and the right to furnish evidence of a higher loss shall remain reserved with GRAF GmbH.
9. Delivery and transfer of risk
9.1 The risk shall be transferred to the customer upon GRAF GmbH’s handing over the consignment to the person carrying out the transportation or upon the consignment leaving GRAF GmbH’s factory for dispatch. Should dispatch be delayed upon the customer’s request or should the goods not be dispatched because of the customer’s own collection of the goods, the risk shall be transferred upon GRAF GmbH’s notifying the customer that the goods are ready for dispatch.
9.2 Generally, insurance for damage to goods in transit will only be taken out upon the customer’s request, on behalf of the customer and on the customer’s own account. In case of delayed delivery upon the customer’s request or the customer’s own collection of the goods, GRAF GmbH shall be entitled to insure the goods against all relevant risks.
9.3 For deliveries to member countries of the European Union, the customer shall be obliged to inform GRAF GmbH about its VAT ID number in writing. The customer shall be responsible for the accuracy of the information provided. If the goods are delivered ex works, the customer shall also be obliged to provide GRAF GmbH with the required confirmation of the transport and the final destination of the goods. Should the customer fail to comply with its duty to inform and should this result in a loss for GRAF GmbH, in particular due to the imposition of fines, taxes, etc., the customer shall be obliged to compensate GRAF GmbH for such loss and indemnify it against claims by third parties.
10. Warranty
10.1 The customer’s rights resulting from breach of warranty against defects shall always be subject to proper inspection and notification of defects by the customer pursuant to Section 377 HGB (German Commercial Code).
10.2 Should the goods delivered be defective, GRAF GmbH, at its option, shall be entitled to rectify the defect or deliver a substitute (supplementary performance).
10.3 Should GRAF GmbH fail to rectify the defect or deliver a substitute, the customer, at its option, shall be entitled to withdraw from the contract or to request a reasonable reduction of the purchase price (abatement). The limitation period for claims of the customer based on defects shall commence upon the transfer of risk, unless the statutory provisions stipulate a longer period. The customer shall not have the right to make any claims beyond those stated above. GRAF GmbH’s liability for consequential harm caused by defects shall be excluded as well as any damage claims for whatever legal reason, unless such liability is prescribed as mandatory by law and/or jurisdiction. This shall not apply in case GRAF GmbH fraudulently concealed the defect or guaranteed the absence of defects.
10.4 GRAF GmbH shall only be liable for defective design or improper workmanship. In case GRAF GmbH performs design tasks, GRAF GmbH shall only be liable if the customer furnishes evidence showing that the product has not been designed to the general state of the art and that GRAF GmbH is at fault in this respect. GRAF GmbH shall only be liable for material defects if GRAF GmbH supplied the materials and if, in the exercise of due diligence of a company skilled in the art, GRAF GmbH should have detected the defect. In the event of a dispute, the customer shall be obliged to furnish evidence of design, manufacturer’s or material defects. If GRAF GmbH manufactures goods based on drawings or data supplied by the customer, GRAF GmbH shall only be liable for the product having been manufactured to the drawing and corresponding to the information provided by the customer. The warranty obligation or the liability for specifically assured performance or processing data shall be excluded if the customer uses materials other than those for which the tool has been designed or if the customer does not comply with GRAF GmbH’s instructions or recommendations relating to specific process materials or operating data. In the event of a dispute, the customer shall be obliged to furnish evidence of its complying with GRAF GmbH’s instructions or recommendations. GRAF GmbH shall only be liable for defects of the performance data if the specifications in the catalogue or the performance data expressly warranted in the supply contract have been fulfilled by less than 80%. The specification of standard values shall not be deemed a contractual warranty of performance data.
10.5 Any defects resulting from normal wear and tear, unsuitable or improper use, incorrect assembly, putting into service or operation or from the reasons stated in Section 5 herein shall be excluded from warranty. Furthermore, GRAF GmbH shall not be liable for defects if a unit is put into service later than three months after its delivery or – should the customer wish to collect the unit himself at GRAF GmbH’s factory - if the customer collects the unit later than three months after receiving GRAF GmbH’s notice that the goods are ready for collection. Finally, any warranty shall be excluded if the customer or third parties commissioned by the customer perform repair or corrective work without GRAF GmbH’s consent and thus render subsequent repair or replacement more difficult.
10.6 In the event of a warranty claim and upon GRAF GmbH’s request, the customer shall first send the parts concerned to GRAF GmbH at the customer’s own expense and risk. Should this be impossible, the customer shall grant GRAF GmbH free of charge the time and access necessary to allow GRAF GmbH to make all the changes required in GRAF GmbH’s opinion or deliver replacement parts or new parts and make auxiliary staff available upon GRAF GmbH’s request. Should the complaint be justified, GRAF GmbH shall bear all the costs incurred for removing the defects; in all other cases the customer shall bear such costs. GRAF GmbH shall not be obliged to remove any defects until the customer has completely fulfilled its obligations to pay. For any replacement parts supplied or for repaired parts, the same warranty provisions as for the original goods delivered shall apply. Any replaced parts shall become the property of GRAF GmbH and shall be returned to GRAF GmbH.
11. Deterioration of the customer’s assets / Seller’s right to withdraw from the contract
11.1 Should the customer become insolvent after the conclusion of the contract, should insolvency proceedings have been instituted against the customer’s assets or should, after the conclusion of the contract, circumstances arise which substantially impair the customer’s creditworthiness, GRAF GmbH shall be entitled to refuse delivery of the goods until counter-performance has been effected or the customer has provided security. The same shall apply if GRAF GmbH does not become aware of the facts supporting the substantial deterioration of the customer’s assets until after the conclusion of the contract even though such deterioration existed before the conclusion of the contract and if such nonawareness is without any fault on GRAF GmbH’s part.
11.2 Should the customer fail to effect counter-performance within a reasonable period of time and should the customer fail to provide security for its counterperformance within a reasonable period of time, GRAF GmbH shall be entitled to withdraw from the contract and/or to claim damages. Should GRAF GmbH decide to claim damages, GRAF GmbH shall be entitled to charge flat damages in the amount of 15% of the order value including VAT. Evidence of lower or higher damage shall be reserved.
12. Reservation of title
12.1 The title to the goods delivered shall not pass to the customer until all current and future (including contingent) claims arising from GRAF GmbH’s business relationship with the customer have been fulfilled. In case of a current account, the title reserved shall be deemed a security for the payment of the balance of the account.
12.2 The partner to the contract (customer) shall be allowed to resell the reserved goods in the regular course of its business subject to the customer’s agreeing upon a reservation of title with its own business partners. At the same time, the customer shall transfer its claim from the resale in the amount of the value of the reserved goods to GRAF GmbH in advance. GRAF GmbH hereby accepts such transfer. Pledging and transfer by way of security of GRAF GmbH’s reserved goods shall not be permitted.
12.3 Any processing of the reserved goods by the customer as defined by Section 950 BGB (German Civil Code) shall always be done on behalf of GRAF GmbH. In case of the union or mingling of the reserved goods pursuant to Sections 947 and 948 BGB, GRAF GmbH shall acquire co-ownership of the new goods in relation of the invoice value of the reserved goods to the other united or mingled items at the point of time of union and/or mingling. Should, in case of the union or mingling of the reserved goods pursuant to Sections 947 and 948 BGB, the customer have become the sole owner, the pro-rata transfer of co-ownership of the principal goods to GRAF GmbH shall be deemed to have been agreed. In such case, the customer shall hold the goods in custody for GRAF GmbH free of charge (anticipatory constructive possession).
12.4 The customer shall notify GRAF GmbH immediately in the event of an execution levied upon GRAF GmbH’s reserved goods or on the claims transferred in advance and shall deliver the necessary documents to GRAF GmbH.
12.5 The maximum coverage for securities shall be 120% of the value of the goods. Upon the customer’s request, GRAF GmbH shall release the securities held by GRAF GmbH insofar as their realisable value exceeds the claims to be secured by more than 10%.
13. Place of performance, place of jurisdiction and applicable law
13.1 The place of performance for delivery and payment shall be Heddesheim.
13.2 The place of jurisdiction for any disputes arising from the business relationship between GRAF GmbH and the customer – with the exception of default action - shall be the place of the company’s head office, i.e. Mannheim. These General Terms and Conditions shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of any reference forward to German private international law. The UN Sales Convention on Contracts for the International Sale of Goods shall be expressly excluded.
13.3 Should one or several of the provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions and agreements made between GRAF GmbH and the customer. The parties to the contract undertake to replace such invalid provisions by valid provisions coming closest to the economic purpose of the invalid provision(s). The same shall apply to any gaps in the contract.
13.4 The customer agrees to the storage and processing of data GRAF GmbH has received from the customer due to GRAF GmbH’s business relationship with the customer.
§ 1 Scope of application
1.1 The following terms and conditions are the contractual basis of our business relationships with our customers. They shall apply to companies and legal persons under private and public law.
1.2 The following conditions shall apply to all our deliveries of goods and provision of services including additional services such as suggestions, planning aids and consulting services. All orders will be accepted and executed based on these terms and conditions.
1.3 We will not accept our business partners’ general terms and conditions unless we expressly agree to their validity in writing. The customer’s general terms and conditions shall not apply either even if being aware of such terms and conditions, we deliver goods and/or provide services without reservation and without objecting to such general terms and conditions again.
§ 2 Offer and conclusion of contract
2.1 Our offers shall be without engagement and non-binding at all times. The same shall be true for all information provided in our brochures, advertisements or on our website.
2.2 Purchase orders shall not be deemed accepted with binding force unless they have been confirmed by us in writing.
2.3 Any amendments, changes or subsidiary agreements must also be confirmed by us writing to be effective.
3. Scope of obligation to deliver
3.1 For the scope of the delivery, our written order confirmation shall be authoritative.
3.2 Oral subsidiary agreements and undertakings made by our employees and representatives must be confirmed by us to be legally effective.
3.3 Any information provided in public communication, advertising, internet presences, offers and other documentation, in particular pictures, drawings and descriptions of measurements and services shall not be binding for the execution unless they have been expressly confirmed in writing in the order acknowledgement.
4. Plans, design drawings, property rights
4.1 Pursuant to Section 2 Subsection 1 Sub-paragraph 7 of the German Copyright Act, GRAF GmbH has the absolute copyright to all designs, drawings and similar documentation produced by GRAF GmbH, in particular pictures, sketches, plans and technical documents. This right shall not be prejudiced by the payment of the order price nor by handover of copies of the design documentation nor by the delivery of the machine or the tool. Without the express written approval of GRAF GmbH, the documents stated above must neither be copied nor reproduced nor made available to third parties in any other form. The customer shall not be authorised to use the documents itself in order to produce machines and tools itself or have these produced by third parties either completely or in part. With regard to this it shall be irrelevant whether the respective documents were produced by GRAF GmbH itself or by third parties commissioned by GRAF GmbH. GRAF GmbH shall be the unconditional owner of the original documentation at all times.
4.2 Should the customer use patterns, drawings or other information and provide these to GRAF GmbH, the customer shall be solely responsible to GRAF GmbH and third parties for such information not injuring any third parties’ rights. GRAF GmbH shall not be obliged to verify whether the customer by providing the documents and/or GRAF GmbH by executing the customer’s order based on such documents infringes upon any third party’s property rights. Should GRAF GmbH be held liable by third parties due to its use of the documents provided by the customer, the customer shall hold GRAF GmbH harmless and indemnify it against any claims arising from such infringement. The customer shall be responsible in general for the correctness of the data provided by the customer.
4.3 Instruction manuals and drawings which GRAF GmbH hands over to the customer for commissioning and use of the goods delivered shall become the customer’s property. However, the contents provided in such instruction manuals and drawings shall remain GRAF GmbH’s intellectual property. With regard to this, the prohibitions stipulated in Section 4.1 hereof shall apply.
5. Prices
5.1 The prices stated are net prices, shall be calculated in euros and shall apply ex works unless otherwise agreed in writing.
5.2 The applicable VAT, duties and charges (if applicable), costs of packaging, transportation and transportation insurance and assembly, if required, shall be added to the prices unless expressly otherwise agreed in writing. Should the price basis change between order acknowledgement and delivery, in particular due to an increase in material prices, wages, energy prices, supplier prices, turnover and transaction taxes or similar things, GRAF GmbH reserves the right to adapt the price in GRAF GmbH’s fair judgement. If list prices apply to the goods delivered, the list prices valid on the date of delivery shall apply at all times.
6. Terms of payment
6.1 Unless specific credit terms are stated in the order acknowledgements, all invoices shall be payable immediately in general.
6.2 Cheques will only be accepted on account of payment; the costs of discounting and cashing cheques shall be borne by the customer.
6.3 If payments are allowed to be deferred or made later than agreed, interest in the amount of 2 per cent above the applicable base rate of the German Central Bank will be charged for the period between due date and payment without GRAF GmbH having to give notice of default.
6.4 If payment by bill of exchange has been agreed upon or in case of any other grant of deferment of payment, all accounts receivable by GRAF GmbH shall fall due immediately if the customer’s bills of exchange or cheques are protested, if execution is levied upon the customer’s assets or if insolvency proceedings have been applied for or opened.
6.5 Offsetting or withholding of payments shall be excluded, unless the offsetting claim is undisputed or has been expressly recognised or has become res iudicata. Claims for rectification of defects recognised by GRAF GmbH shall in no case entitle the customer to withhold payments.
6.6 Representatives or other agents of GRAF GmbH shall not be entitled to accept payments in general. Exceptions shall only be permitted upon express written confirmation by GRAF GmbH.
7. Packaging
GRAF GmbH shall have the right to pack the goods in the usual manner at the customer’s expense, unless the customer has expressly ordered a different kind of packaging at its own expense in due time. Packaging materials will not be taken back by GRAF GmbH in general.
8. Delivery time
8.1 Terms for delivery shall only be considered approximate standard terms unless they are expressly specified as binding in GRAF GmbH’s order acknowledgement. In general, the delivery time shall not begin to run until all details of the order execution have been clarified and both parties have agreed on all conditions of the transaction. The delivery time shall refer to the completion of the goods in GRAF GmbH’s plant or GRAF GmbH’s notifying the customer that the goods are ready for collection. Delivery times shall not be binding unless the customer has complied with all its contractual obligations, in particular the agreed terms of payment. All delivery times shall be extended in case of unforeseen events beyond GRAF GmbH’s control, such as war, war-like situations, shortage of energy and raw materials, operational breakdowns, industrial action at GRAF GmbH’s factory or its subcontractors’ factories, in particular strikes and lock-outs, delayed delivery by the subcontractor, scrap in GRAF GmbH’s or the subcontractor’s factory and other interruptions of production beyond GRAF GmbH’s control. This shall also apply in case these events occur during the delay of delivery. The same shall apply if any necessary permits from an authority or other permits from third parties required for the performance of deliveries result in delays or if any information from the customer required for the performance of the delivery is missing or the delivery is delayed by any act or failure to act of the customer. GRAF GmbH shall notify the customer of the beginning and end of such impediments and delays as soon as possible.
8.2 Partial deliveries shall be permissible.
8.3 The delivery time shall be deemed observed when the customer’s order has left GRAF GmbH’s factory or, should the customer itself collect the goods at GRAF GmbH’s factory, when GRAF GmbH has notified the customer that the goods are ready for collection.
8.4 The customer shall not be entitled to cancel the contract unless GRAF GmbH is responsible for the failure to comply with the delivery time and unless the reasonable extension granted to GRAF GmbH by the customer has lapsed. The assertion of damage claims for delays shall be excluded.
8. 5 Should the customer fail to collect the goods ordered on the expressly stipulated date of delivery or should the dispatch of the goods be delayed upon the customer’s request, the customer shall be in default of acceptance. Besides its other statutory rights, GRAF GmbH shall be entitled to charge the customer for the storage costs of the goods, beginning one month after GRAF GmbH’s notice of readiness of the goods for dispatch or the customer’s failure to collect the goods at GRAF GmbH’s factory. Should the goods be stored on GRAF GmbH’s premises, the customer shall be liable to pay at least 0.5 per cent of the invoiced amount for each month of storage. The right to furnish evidence of a lower loss shall remain reserved with the customer and the right to furnish evidence of a higher loss shall remain reserved with GRAF GmbH.
9. Delivery and transfer of risk
9.1 The risk shall be transferred to the customer upon GRAF GmbH’s handing over the consignment to the person carrying out the transportation or upon the consignment leaving GRAF GmbH’s factory for dispatch. Should dispatch be delayed upon the customer’s request or should the goods not be dispatched because of the customer’s own collection of the goods, the risk shall be transferred upon GRAF GmbH’s notifying the customer that the goods are ready for dispatch.
9.2 Generally, insurance for damage to goods in transit will only be taken out upon the customer’s request, on behalf of the customer and on the customer’s own account. In case of delayed delivery upon the customer’s request or the customer’s own collection of the goods, GRAF GmbH shall be entitled to insure the goods against all relevant risks.
9.3 For deliveries to member countries of the European Union, the customer shall be obliged to inform GRAF GmbH about its VAT ID number in writing. The customer shall be responsible for the accuracy of the information provided. If the goods are delivered ex works, the customer shall also be obliged to provide GRAF GmbH with the required confirmation of the transport and the final destination of the goods. Should the customer fail to comply with its duty to inform and should this result in a loss for GRAF GmbH, in particular due to the imposition of fines, taxes, etc., the customer shall be obliged to compensate GRAF GmbH for such loss and indemnify it against claims by third parties.
10. Warranty
10.1 The customer’s rights resulting from breach of warranty against defects shall always be subject to proper inspection and notification of defects by the customer pursuant to Section 377 HGB (German Commercial Code).
10.2 Should the goods delivered be defective, GRAF GmbH, at its option, shall be entitled to rectify the defect or deliver a substitute (supplementary performance).
10.3 Should GRAF GmbH fail to rectify the defect or deliver a substitute, the customer, at its option, shall be entitled to withdraw from the contract or to request a reasonable reduction of the purchase price (abatement). The limitation period for claims of the customer based on defects shall commence upon the transfer of risk, unless the statutory provisions stipulate a longer period. The customer shall not have the right to make any claims beyond those stated above. GRAF GmbH’s liability for consequential harm caused by defects shall be excluded as well as any damage claims for whatever legal reason, unless such liability is prescribed as mandatory by law and/or jurisdiction. This shall not apply in case GRAF GmbH fraudulently concealed the defect or guaranteed the absence of defects.
10.4 GRAF GmbH shall only be liable for defective design or improper workmanship. In case GRAF GmbH performs design tasks, GRAF GmbH shall only be liable if the customer furnishes evidence showing that the product has not been designed to the general state of the art and that GRAF GmbH is at fault in this respect. GRAF GmbH shall only be liable for material defects if GRAF GmbH supplied the materials and if, in the exercise of due diligence of a company skilled in the art, GRAF GmbH should have detected the defect. In the event of a dispute, the customer shall be obliged to furnish evidence of design, manufacturer’s or material defects. If GRAF GmbH manufactures goods based on drawings or data supplied by the customer, GRAF GmbH shall only be liable for the product having been manufactured to the drawing and corresponding to the information provided by the customer. The warranty obligation or the liability for specifically assured performance or processing data shall be excluded if the customer uses materials other than those for which the tool has been designed or if the customer does not comply with GRAF GmbH’s instructions or recommendations relating to specific process materials or operating data. In the event of a dispute, the customer shall be obliged to furnish evidence of its complying with GRAF GmbH’s instructions or recommendations. GRAF GmbH shall only be liable for defects of the performance data if the specifications in the catalogue or the performance data expressly warranted in the supply contract have been fulfilled by less than 80%. The specification of standard values shall not be deemed a contractual warranty of performance data.
10.5 Any defects resulting from normal wear and tear, unsuitable or improper use, incorrect assembly, putting into service or operation or from the reasons stated in Section 5 herein shall be excluded from warranty. Furthermore, GRAF GmbH shall not be liable for defects if a unit is put into service later than three months after its delivery or – should the customer wish to collect the unit himself at GRAF GmbH’s factory - if the customer collects the unit later than three months after receiving GRAF GmbH’s notice that the goods are ready for collection. Finally, any warranty shall be excluded if the customer or third parties commissioned by the customer perform repair or corrective work without GRAF GmbH’s consent and thus render subsequent repair or replacement more difficult.
10.6 In the event of a warranty claim and upon GRAF GmbH’s request, the customer shall first send the parts concerned to GRAF GmbH at the customer’s own expense and risk. Should this be impossible, the customer shall grant GRAF GmbH free of charge the time and access necessary to allow GRAF GmbH to make all the changes required in GRAF GmbH’s opinion or deliver replacement parts or new parts and make auxiliary staff available upon GRAF GmbH’s request. Should the complaint be justified, GRAF GmbH shall bear all the costs incurred for removing the defects; in all other cases the customer shall bear such costs. GRAF GmbH shall not be obliged to remove any defects until the customer has completely fulfilled its obligations to pay. For any replacement parts supplied or for repaired parts, the same warranty provisions as for the original goods delivered shall apply. Any replaced parts shall become the property of GRAF GmbH and shall be returned to GRAF GmbH.
11. Deterioration of the customer’s assets / Seller’s right to withdraw from the contract
11.1 Should the customer become insolvent after the conclusion of the contract, should insolvency proceedings have been instituted against the customer’s assets or should, after the conclusion of the contract, circumstances arise which substantially impair the customer’s creditworthiness, GRAF GmbH shall be entitled to refuse delivery of the goods until counter-performance has been effected or the customer has provided security. The same shall apply if GRAF GmbH does not become aware of the facts supporting the substantial deterioration of the customer’s assets until after the conclusion of the contract even though such deterioration existed before the conclusion of the contract and if such nonawareness is without any fault on GRAF GmbH’s part.
11.2 Should the customer fail to effect counter-performance within a reasonable period of time and should the customer fail to provide security for its counterperformance within a reasonable period of time, GRAF GmbH shall be entitled to withdraw from the contract and/or to claim damages. Should GRAF GmbH decide to claim damages, GRAF GmbH shall be entitled to charge flat damages in the amount of 15% of the order value including VAT. Evidence of lower or higher damage shall be reserved.
12. Reservation of title
12.1 The title to the goods delivered shall not pass to the customer until all current and future (including contingent) claims arising from GRAF GmbH’s business relationship with the customer have been fulfilled. In case of a current account, the title reserved shall be deemed a security for the payment of the balance of the account.
12.2 The partner to the contract (customer) shall be allowed to resell the reserved goods in the regular course of its business subject to the customer’s agreeing upon a reservation of title with its own business partners. At the same time, the customer shall transfer its claim from the resale in the amount of the value of the reserved goods to GRAF GmbH in advance. GRAF GmbH hereby accepts such transfer. Pledging and transfer by way of security of GRAF GmbH’s reserved goods shall not be permitted.
12.3 Any processing of the reserved goods by the customer as defined by Section 950 BGB (German Civil Code) shall always be done on behalf of GRAF GmbH. In case of the union or mingling of the reserved goods pursuant to Sections 947 and 948 BGB, GRAF GmbH shall acquire co-ownership of the new goods in relation of the invoice value of the reserved goods to the other united or mingled items at the point of time of union and/or mingling. Should, in case of the union or mingling of the reserved goods pursuant to Sections 947 and 948 BGB, the customer have become the sole owner, the pro-rata transfer of co-ownership of the principal goods to GRAF GmbH shall be deemed to have been agreed. In such case, the customer shall hold the goods in custody for GRAF GmbH free of charge (anticipatory constructive possession).
12.4 The customer shall notify GRAF GmbH immediately in the event of an execution levied upon GRAF GmbH’s reserved goods or on the claims transferred in advance and shall deliver the necessary documents to GRAF GmbH.
12.5 The maximum coverage for securities shall be 120% of the value of the goods. Upon the customer’s request, GRAF GmbH shall release the securities held by GRAF GmbH insofar as their realisable value exceeds the claims to be secured by more than 10%.
13. Place of performance, place of jurisdiction and applicable law
13.1 The place of performance for delivery and payment shall be Heddesheim.
13.2 The place of jurisdiction for any disputes arising from the business relationship between GRAF GmbH and the customer – with the exception of default action - shall be the place of the company’s head office, i.e. Mannheim. These General Terms and Conditions shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of any reference forward to German private international law. The UN Sales Convention on Contracts for the International Sale of Goods shall be expressly excluded.
13.3 Should one or several of the provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions and agreements made between GRAF GmbH and the customer. The parties to the contract undertake to replace such invalid provisions by valid provisions coming closest to the economic purpose of the invalid provision(s). The same shall apply to any gaps in the contract.
13.4 The customer agrees to the storage and processing of data GRAF GmbH has received from the customer due to GRAF GmbH’s business relationship with the customer.
