The general terms and conditions of the mechanical engineering company G+K

I. General

All deliveries and services are subject to these terms and any separate contractual agreements. Deviating purchasing conditions of the buyer do not become part of the contract, even if the order is accepted. They also do not become part of the contract if we perform the delivery or service with knowledge of conflicting conditions.

A contract is concluded – in the absence of a special agreement – with the written order confirmation from the supplier (hereinafter: G+K).

II. Scope of delivery

The scope of the delivery is determined by the written order confirmation from the machinery manufacturer G+K. In the case of a time-bound offer from G+K and its timely acceptance, the offer shall apply if no timely order confirmation is available. Any side agreements and changes require written confirmation from G+K. Any subsequent deviations from the underlying contract must be documented or specified in writing.

III. Price and Payment

In the absence of a special agreement, prices are ex works, including loading at the factory, but excluding packaging and unloading. Value-added tax at the applicable statutory rate is added to the prices.

Unless otherwise agreed, payment is to be made in cash without any deduction, free to the G+K payment office, as follows:

• 30% upon order confirmation, due immediately
• 70% upon notification of readiness for shipment, due immediately
• each plus the currently valid value-added tax.

Any agreed commissioning by G+K must always be compensated separately.

The buyer has the right to withhold payments only to the extent that their counterclaims are undisputed or legally established.

The buyer's right to offset claims from other legal relationships is only permitted to the extent that such claims are undisputed or legally established.

IV. Delivery time

• The delivery time is determined by the agreements between the contracting parties. G+K's adherence to this time is contingent upon all commercial and technical matters between the parties being clarified, and the buyer fulfilling all obligations, such as providing the required official certificates or permits, or making a down payment. If this is not the case, the delivery time will be extended accordingly. This does not apply if G+K is responsible for the delay.
• If, after the contract has been concluded, indications arise that the buyer's ability to perform is at risk (e.g., due to payment delay or suspension, a bankruptcy filing, transfer of circulating assets as collateral, or unfavorable information from banks, credit institutions, or credit insurers), G+K is entitled to refuse its performance. After setting a deadline for the provision of securities in the form of direct bank guarantees or advance payments, G+K may withdraw from the contract and/or claim damages according to legal provisions. A deadline is not required if the buyer's inability to perform is obvious.
• Compliance with the delivery time is subject to correct and timely self-delivery. G+K will notify the buyer of foreseeable delays as soon as possible. The delivery period is met if, by its expiration, the delivery item has left the factory or notification of readiness for shipment has been given. If acceptance is required, the acceptance date is decisive, except in cases of justified refusal of acceptance; otherwise, the notification of readiness for acceptance applies.
• If the shipment or acceptance of the delivery item is delayed for reasons for which the buyer is responsible, the costs incurred due to the delay will be charged to the buyer, starting one month after notification of readiness for shipment or acceptance.
• If circumstances beyond G+K’s control make it difficult, delay, or make it impossible to execute accepted orders, G+K is entitled to postpone the delivery, the remaining delivery, or partial delivery for the duration of the hindrance, or to withdraw from the contract entirely or partially, without the buyer being entitled to claim damages. Such circumstances include government interventions, operational disruptions, strikes, lockouts, labor disruptions due to political or economic conditions, shortages of necessary raw and operating materials, material scarcity, energy supply difficulties, transport delays due to traffic disruptions, or unavoidable events at G+K, its subcontractors, or other companies on which G+K depends. This applies even if these events occur when G+K is already in default.
• The buyer may withdraw from the contract without setting a deadline if the entire performance by G+K becomes permanently impossible before the transfer of risk. The buyer may also withdraw from the contract if part of the delivery becomes impossible and they have a legitimate interest in rejecting the partial delivery. If this is not the case, the buyer must pay the contract price corresponding to the partial delivery. The same applies in cases of G+K's inability to perform. Section VII.2 applies in all other respects.
• If impossibility or inability occurs during the buyer's delay in acceptance, or if the buyer is solely or largely responsible for these circumstances, they remain obligated to provide the counter-performance.
• If G+K is in default and the buyer suffers damage as a result, the buyer is entitled to claim a lump-sum compensation for the delay. This amounts to 0.5% of the value of the part of the total delivery that cannot be used as intended due to the delay for each full week of delay, but no more than 5% of this value in total.
• If, after the due date, the buyer sets G+K a reasonable deadline for performance, considering the statutory exceptions, and this deadline is not met, the buyer is entitled to withdraw from the contract in accordance with legal provisions. At G+K's request, the buyer must declare within a reasonable period whether they will exercise their right of withdrawal.
• Further claims for delay in delivery are governed exclusively by Section VII.2 of these terms.

V. Transfer of Risk

• The risk transfers to the buyer when the delivery item has left the factory, even if partial deliveries are made or G+K has assumed other services, such as shipping costs, delivery, and installation.
• If the shipment is delayed due to circumstances for which the buyer is responsible, the risk transfers to the buyer from the day of notification of readiness for shipment or acceptance.
• Delivered items must be accepted by the buyer, even if they have minor defects, without prejudice to the rights outlined in Section VII.
• Partial deliveries are permissible as long as they are reasonable for the buyer.

VI. Retention of title

• The delivery item remains the property of G+K until full payment of all claims by G+K, including future claims against the buyer, has been made. This also applies to payments made on specifically designated claims until any open account balance is settled.
• The items subject to retention of title must be properly stored at the buyer’s expense, kept separate from other items, and, upon G+K's request, specially marked and insured against damage, loss, and theft. Upon request, the buyer must present G+K with proof of the insurance coverage. The buyer hereby assigns to G+K in advance any claims arising from the insurance contracts up to the value of the retained property and consents to the payout to G+K. G+K is entitled to reclaim the retained property and to have representatives enter the buyer's premises for this purpose.
• The buyer is always revocably entitled, and as long as they meet their obligations to G+K according to the agreement, to resell the retained property in the ordinary course of business. In such a case, or in the event of the delivery or installation of the retained property to a third party, regardless of its value or condition, the buyer hereby assigns to G+K in advance any claims arising from the resale, delivery, or installation against their customers, along with any ancillary rights, including any potential claims for damages, up to the invoice value of the deliveries to G+K.
• If the retained property is processed, combined, or transformed, such processing, combination, or transformation will be carried out on behalf of G+K, but without any liability. If the buyer processes the retained property with other items not belonging to G+K, G+K shall acquire co-ownership of the new item in proportion to the value of the retained property relative to the other processed items at the time of processing. If the retained property is mixed or combined with other items, G+K shall acquire co-ownership in proportion to the value of the retained property at the time of combination.
• In the event of a prohibition on assignment during resale, installation, or in the case of payment default, the buyer is obligated to disclose the advance assignment to their third-party purchaser. If the retained property delivered by G+K is sold together with other items to a third party, the buyer is obliged to separate the invoice items accordingly. If a separate invoice is not issued, the portion of the total price that corresponds to the invoice value of the delivery is deemed assigned to G+K. The retention of title remains in effect even if the buyer's individual claims against their third-party purchaser are included in a running account. In this case, the buyer hereby assigns the balance in their favor to G+K. In the event of the buyer's payment default, G+K is entitled to collect the assigned claim directly from the third-party debtor.
• The buyer is prohibited from making extraordinary dispositions such as pledges, assignments for security purposes, or transferring ownership of the retained property. The buyer is obliged to immediately notify G+K if third parties seize or attempt to seize G+K’s property or claims, such as through garnishments or any other form of property infringement. The buyer shall bear the costs of an intervention lawsuit if the third-party action is their responsibility.
• If the value of the total security provided to G+K from the business relationship exceeds G+K’s claims by more than 20%, G+K is obligated, upon the buyer's request, to reassign the excess securities. G+K will choose which securities to reassign.

VII. Claims for defects

G+K shall be liable for defects in quality and title of the delivery, subject to Section VIII, to the exclusion of further claims, as follows:

Material defects

All parts that prove to be defective due to circumstances existing prior to the transfer of risk shall, at the discretion of G+K, be repaired or replaced free of defects. The detection of such defects must be reported to G+K in writing without delay. Replaced parts become the property of G+K.

The buyer must provide G+K with the necessary time and opportunity to carry out any repairs and replacement deliveries deemed necessary by G+K, after coordinating with G+K. Otherwise, G+K is released from liability for the resulting consequences. In urgent cases, where operational safety is at risk or to prevent disproportionately large damages, the buyer has the right to remedy the defect themselves or through third parties and to demand reimbursement of the necessary expenses from G+K, provided that G+K is notified immediately.

If the complaint is found to be justified, G+K will bear the direct costs of the repair or replacement delivery, including shipping. G+K will also cover the costs of removal and installation, as well as the costs of providing necessary personnel, such as mechanics and assistants, including travel expenses, as long as this does not impose an unreasonable burden on G+K.

The buyer has the right to withdraw from the contract under statutory provisions if G+K allows a reasonable deadline set for repairs or replacement due to a material defect to pass without result, taking into account statutory exceptions. If the defect is minor, the buyer is only entitled to reduce the contract price. The right to reduce the contract price is otherwise excluded.

No liability will be assumed in particular for the following cases: Improper or unsuitable use, incorrect assembly or commissioning by the buyer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical, or electrical influences, provided they are not attributable to G+K.

If the buyer or a third party carries out improper repairs, G+K will not be liable for the resulting consequences. The same applies to any changes made to the delivery item without prior consent from G+K.

Defects of title

If the use of the delivered item results in the infringement of industrial property rights or copyrights within the country, G+K will, at its own expense, generally obtain the right for the buyer to continue using the item or modify the delivery item in a way that is reasonable for the buyer so that the infringement of property rights no longer exists.

If this is not possible under economically reasonable conditions or within a reasonable period of time, the buyer is entitled to withdraw from the contract. Under these conditions, G+K also has the right to withdraw from the contract.

Furthermore, G+K will indemnify the buyer from any claims made by the holders of such rights that are undisputed or legally established.

VIII. Liability of G+K, Disclaimer

If the delivery item cannot be used in accordance with the contract due to G+K’s negligent omission or faulty advice provided before or after the conclusion of the contract, or due to the negligent breach of other contractual ancillary obligations—particularly instructions for operating and maintaining the delivery item—the provisions of Sections VI and VII.2 apply, excluding further claims by the buyer.

For damages not arising from the delivery item itself, G+K is liable—regardless of the legal grounds—only in the following cases:

• Intentional misconduct,
• Gross negligence by the owner, corporate officers, or senior employees,
• Negligent injury to life, body, or health,
• Defects that were fraudulently concealed,
• Within the scope of a warranty promise,
• For defects in the delivery item to the extent G+K is liable under the Product Liability Act for personal or property damage to privately used items.

• In cases of negligent breach of essential contractual obligations, G+K is also liable for damages caused by gross negligence of non-executive employees and by minor negligence, with the latter being limited to the typical, reasonably foreseeable damage.

  Further claims are excluded.

• IX. Limitation period

• All claims by the buyer—regardless of the legal grounds—expire after 12 months. Statutory deadlines apply to claims for damages under Section VIII.2 a–d and f.

• X. Data protection

• G+K may process and store data related to the respective delivery contracts to the extent necessary for the execution and handling of the delivery contract and as long as G+K is required by law to retain this data.
• G+K reserves the right to transmit personal data of the buyer to credit agencies if this is necessary for a credit check, provided that the buyer explicitly agrees to this on a case-by-case basis. G+K will not otherwise forward personal customer data to third parties without the explicit consent of the buyer, except where G+K is legally obligated to disclose data.
• The collection, transmission, or any other processing of personal data of the buyer for purposes other than those specified in this clause is not permitted for G+K.

• XI. Use of Software

• If the delivery includes software, the buyer is granted a non-exclusive right to use the delivered software, including its documentation. It is provided for use on the designated delivery item only. Usage of the software on more than one system is prohibited.
• The buyer may only reproduce, modify, translate, or convert the software from object code to source code to the extent permitted by law (§§ 69a et seq. UrhG). The buyer agrees not to remove or alter manufacturer information, particularly copyright notices, without the prior explicit consent of G+K.
• All other rights to the software and documentation, including copies, remain with G+K or the software supplier. Sub-licensing is not permitted.

• XII. Other provisions, applicable law, place of jurisdiction

• The assignment of claims that the buyer has against G+K arising from the business relationship is excluded.
• Should any of the above conditions be legally ineffective, the validity of the other provisions and the contract as a whole shall not be affected. Any provisions deemed ineffective will be replaced by new regulations aiming for the same economic result. If provisions are not part of the contract, the content of the contract will then be governed by the statutory regulations.
• German law exclusively applies to the contractual relationships. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
• If the customer is a merchant under the Commercial Code, a legal entity under public law, or a special fund under public law, the place of performance and the exclusive place of jurisdiction for delivery, payments, and all disputes arising between the parties is the location of G+K. If at least one of the contracting parties does not have a general place of jurisdiction within the country, the exclusive place of jurisdiction is also the location of G+K.

Status: December 2014
G+K (Mechanical Engineering Company)