GTC Curt Georgi GmbH & Co. KG
I. Scope of Application
(1) All supplies and services of Curt Georgi GmbH & Co. KG (hereinafter “Seller”) are subject to the exclusive application of these General Terms and Conditions of Supply. These Terms and Conditions shall govern all contracts closed between the Seller and its contractual partners (hereinafter: “Customer”) with regard to supplies and services offered by the Seller. These Terms and Conditions shall also govern all future supplies, services or offers to the Customer, even if they are not specifically agreed upon again.
(2) General Terms and Conditions of the Customer or third parties shall not apply, even if the Seller has not explicitly objected to them. In case that the Seller refers to written communication that contains General Terms and Conditions of the Customer or third parties or refers to such General Terms and Conditions, such referral shall not be deemed as consent of the Seller to these Terms and Conditions.
II. Offer and Conclusion of the Contract
(1) All offers by the Seller are invitations for contract initiations only and therefore subject to confirmation, unless such offers are explicitly identified as binding offers or contain a term of acceptance. The Seller may accept orders or assignments of the Customer within 14 days as of receipt of such offer or assignment. Offer documentation shall not be disclosed to unauthorized third parties and shall be returned upon request by the Seller in case that a contract is not concluded. Copies of offer documentation shall be deleted unless such copies are needed in the course of ordinary business activities. Copies of electronic offer documentation, which have been made in the course of ordinary backups, are excluded from such obligation to delete.
(2) The contract is governed by the order and the order confirmation solely, including these General Terms and Conditions of Supply, which altogether reflect the agreement between the parties entirely. Regulations of the order confirmation shall prevail over these Terms and Conditions. Oral covenants of the Seller prior to the conclusion of the contract are non-binding und oral agreements of the parties are replaced by the written contract, unless it is expressly intended that such oral agreements shall remain in force.
(3) Amendments to the contract, including amendments to these Terms and Conditions of Supply shall be made in writing only. On behalf of the Seller only Managing Directors or Procurists are entitled to oral amendments hereto. Communication by telecommunication, in particular via telefax or E-Mail, shall be sufficient to meet the written form, provided that a copy of the signed declaration is submitted.
(4) Information of the Seller as to the subject of the supply or service (e.g. weight, percentage, compositions and technical data) are to be regarded as approximate only and have been established as average values in trials under customary laboratory conditions. Unless limitations for permissible deviations have been expressly established and described as such in the order confirmation, deviations customary in the business (allowable variations) are permissible. Deviations due to statutory regulations or technical improvements, as well as the replacement of ingredients with equivalent ingredients, are permissible, unless such deviations affect the contractually provided utilization.
III. Prices, Terms of Payment
(1) Prices in offers (as defined in Sec. II Para. 1 of these Terms and Conditions) are non-binding and refer to the price component “goods” as net-price per kilogram in Euro only. Only prices in pro forma invoices or order confirmation are final net-prices for the supply including packing, transport, handling costs and costs for legalization for exports or other export costs, irrespective of whether single price components are shown separately or only the final net price is indicated. Such prices are net prices and shall apply plus the applicable VAT. Transit and import costs are borne by the Customer.
(2) Unless otherwise agreed in writing, invoiced amounts are payable within 14 days without deduction. Payments shall be effective on the date of receipt by the Seller. Unless otherwise specifically agreed, payments by bill of exchange or by check are excluded. If the Customer fails to perform at maturity, interests shall be payable from the due date for the time being at 5% p.a.; the right to charge higher interests and assert further losses in case of default shall not be affected.
(3) The Customer shall be entitled to offset or to claim retainer rights with regard to payments only insofar as the Customer’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgment.
(4) The Seller shall be entitled to effect outstanding supplies or services only against advance payments or securities, if, after conclusion of the contract, the Seller becomes aware of circumstances, which substantially reduce the creditworthiness of the Customer and which jeopardize outstanding payments by the Customer with regard to the respective contractual relationship (including single orders governed by the same framework contract).
IV. Terms and Date of Delivery
(1) Unless otherwise stated in the order confirmation, deliveries shall be effected CPT to the place of destination named in the order confirmation, place of delivery: Otto-Lilienthal-Straße 35-37, 71034 Böblingen, Germany, Incoterms 2010. The time of delivery and the date of delivery refer to the delivery to the place of delivery, meaning the time at which the supply is handed over to the carrier or any third party instructed with the transportation.
(2) The Seller is not liable for the impossibility or delays of the delivery in case of force majeure or circumstances not foreseeable at the time of the conclusion of the contract (e.g. disruption of operations, difficulties in obtaining material or energy, transport delays, strikes or legal lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permissions, official measures or failures or delays in the supply by suppliers), unless such circumstances are attributable to the Seller. In case such events significantly obstruct the delivery or performance of services on the part of the Seller or render them impossible, and if such obstruction is not only temporary, the Seller is entitled to withdraw from the contract. In case of temporary obstructions, the deadlines for deliveries and the performance of services shall be extended by the time period of the obstruction plus an appropriate response time. If, due to the delay, the acceptance of the delivery or the service is unacceptable for the Customer, the Customer is entitled to withdraw from the contract by informing the Seller in writing without delay.
V. Place of Performance, Passing of Risk
(1) Place of performance for all obligations of the contractual relationship is the registered office of the Seller. According to Sec. IV Para. 1 of these Terms and Conditions the risk shall pass to the Customer at the latest with the handover of the supply to the carrier or any third party instructed with the transportation. The Seller shall not be obliged to sign an insurance policy. In case of any delay of the handover or the beginning of the transportation attributable to the Customer, the risk shall pass to the Customer at the time when the supply is ready for transportation and the Seller has informed the Customer accordingly.
(2) After the passing of risk, storage costs shall be borne by the Customer. In case of storage by the Seller, the Seller shall charge storage fees in the amount of 0,25% of the invoice value of the stored supply for each full week. The right to assert and prove further or lower storage costs is not affected.
VI. Retention of Title
(1) The Seller retains the title to all supplied goods until full payments of all secured receivables (such goods are hereinafter referred to as “reserved goods”). The Customer may process or resell reserved goods subject to the abovementioned retention of title only in the course of its regular business.
(2) In case that the Customer processes the reserved goods, the parties agree that the reserved goods will be processed in the name and on the account of the Seller as manufacturer and that the Seller shall directly acquire ownership or - in case that several goods of various owners are processed or the value of the processed goods is higher than the value of the reserved goods - co-ownership (co-ownership by defined shares) in the processed goods at the ratio of the value of the reserved goods to the value of the processed goods. If and in the case that the Seller does not acquire ownership pursuant to the abovementioned regulation the Customer assigns in advance its future ownership or - at the abovementioned ratio - co-ownership in the processed goods as security to the Seller. In case that the reserved goods are combined or inseparably mixed with other goods to another unitary item and in case that one of the other goods is to be regarded as the main item and such item belongs to the Customer, the Customer assigns in advance the co-ownership in the unitary item at the abovementioned ratio.
(3) In case that the Customer resells the reserved goods either in their original condition or in processed condition, the Customer assigns in advance such receivables against the purchaser as security that are derived from the sale of the aforementioned goods - in case of co-ownership in the sold goods at the respective ratio - to the Seller. The Customer shall be authorized to collect payments on the assigned receivables in its own name and on its own behalf. The Seller may only withdraw such authorization in case of a withdrawal from the contract.
(4) The Seller shall release reserved goods or any items and/or receivables replacing them insofar, as their realizable value exceeds the value of the secured receivables against the Customer by more than 10%. The Seller shall chose the objects to be released in its sole discretion.
VII. Warranty, Liability
(1) The statutory regulations as to warranty shall apply. The Seller does not provide, as part of the contractual quality, that the supplied goods meet legal requirements applicable outside of the European Union as to the intended use of the Customer. The Customer shall make such assessment in its own responsibility.
(2) The warranty period is 12 months as of supply or, in cases where acceptance is required, as of acceptance. This reduction of the statutory warranty period shall not be applicable with regard to claims based on intent and claims for damages based on gross negligence, claims for damages for the injury of life, body or health, claims for defects fraudulently concealed by the Seller, in the extent of a given guarantee or an adopted procurement risk and with regard to recourse claims for products resold to consumers as set out in Sec. 479 German Civil Code.
(3) Any claims for damages, irrespective of the legal basis, are hereby excluded. The Seller is only liable for damages in cases of intent or gross negligence, in cases of negligent injury to life, body or health, in cases of defects fraudulent concealed by the Seller, in the extent of a given guarantee or an adopted procurement risk, in cases of default, if a fixed date for supply has been agreed on, in cases of liability pursuant to the Product Liability Act. In cases of the breach of essential contractual obligations (obligations the compliance of which is the basis for the performance of the contract and the Customer may reasonably rely on the compliance with such obligations) the Seller is liable in cases of negligence. In such cases, the liability is limited to the typical and adequate foreseeable damage. The same limitation of liability applies to claims for reimbursement under Sec. 284 of the German Civil Code.
VIII. Place of Jurisdiction, Applicable Law
(1) Place of jurisdiction for all disputes arising out or in connection with the business relationship between the Seller and the Customer, irrespective of the legal basis of the dispute, shall be at the Seller‘s choice either Stuttgart or the registered seat of the Customer. For complaints against the Seller shall, however, be Stuttgart the sole and exclusive place of jurisdiction. Mandatory statutory regulations as to the place of jurisdiction shall not be affected.
(2) The legal relationship between the Seller and the Customer shall be governed by the laws of the Federal Republic of Germany with exclusion of the Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
(3) If the contract or these General Terms and Conditions of Supply should contain regulatory gaps, such effective regulations shall apply that the contractual parties would have agreed on taking into account the economic objectives and intentions of the contract, if they had known the regulatory gap.
As of March 2016