General business terms and conditions
General
1. All deliveries, services, offers and other contractual performances are executed solely on the basis of the present business conditions. Future business conditions shall become the basis of the contractual relationship even without specific future agreement. The business and purchase conditions of GRAF’s contract partner have no validity, even if GRAF does not expressly object to them. This also applies in the case of all future business relationships.
2. All individual contractual agreements in written form take precedence, whereby these general business conditions retain their validity as long as they do not conflict with the individual contractual agreements. GRAF reserves the ownership rights and copyrights to estimates, drawings and other documents. Infringements of any kind will incur liability for damages.
3. GRAF expressly advises that specifications in the descriptions, documents and illustrations pertaining to characteristics of the object of contract are only approximate guidelines and explicitly do not represent warranted characteristics. The warrant of a characteristic does not come into effect unless specifically expressed as such by GRAF in writing.
Offer and Conclusion of Contract
1. Offers are drawn up according to the documents submitted to GRAF and are without obligation and nonbinding until a binding order is placed. The submitted documents form the basis of the offers made by GRAF. Conclusion of a contract does not come into effect until the order has been confirmed in writing by GRAF. The same applies with any collateral and variation agreements.
2. An offer made by GRAF may only be used as an index of performances with GRAF’s consent. In such a case GRAF shall receive appropriate recompense for costs incurred in drawing up the project in the event of the order being placed with another party.
3. Drawings made by GRAF are to be examined by the contract partner as to their feasibility, also from a technical point of view and with regard to the required installation measurements. In the case of any inconsistencies GRAF is to be notified immediately, as GRAF otherwise cannot and shall not be held responsible for any erroneous productions. Cancellations of orders after conclusion of contract will not be accepted by GRAF.
Transfer of Liability
1. Risks connected with the object of contract shall pass to the orderer from the time of dispatch. Should dispatch be delayed or prove impossible through no fault of GRAF, risk passes to the orderer from the time of notification that the goods are ready to be collected. This will always apply if collection has been agreed by the contract partner. If the delay is caused by breach of obligation to cooperate on the part of the orderer (e.g. revocation after the agreed time limit, non-acceptance), GRAF is entitled, after a fruitless period of extension, to store the object of the contract at the orderer’s expense. The object of the contract is then deemed to be accepted. GRAF can also implement the necessary measures and execute delivery or withdraw from the unfulfilled portion of the contract or claim damages at its own option. This will be without prejudice to GRAF’s further rights.
2. In the event of the orderer ultimately not accepting the object of the contract ordered by him, GRAF is entitled to damages to the amount of 25% of the contract price, whereby the orderer also has the right to prove lesser damages, just as GRAF has the possibility of proving greater damages.
Price and Payment
1. Prices apply ex works and exclude costs such as value added tax, packaging, import duties, insurance and other extras. They are strictly net prices.
2. Payment for each delivery or performance shall be made subject to the conditions of contract, otherwise payment shall be made immediately in cash without any deductions upon receipt of notification of readiness for dispatch. Discounts or other reductions shall not be allowed. Payment is first considered complete when GRAF has free disposal of cleared funds. Payments are to be made free of all charges for GRAF.
3. GRAF is entitled first of all to set payments off against the buyer’s previous debts, even if the buyer has stipulated otherwise. If costs and interest have already accumulated, GRAF is entitled to offset payment first against the costs, then against the interest, then against the main demand.
4. In the event of default of payment, interest on arrears of 8% above the base interest rate will be charged in the case of companies, legal entities of the public law or special authorities under public law. The legal interest rate of 5% above the basic interest rate is charged to persons other than these. GRAF still retains the right to prove and claim damages of greater magnitude.
5. GRAF is entitled to demand payment in advance or adequate securities up to 100% of the order value. This right is not principally bound to any conditions. If the buyer / orderer does not duly comply with such requests within a given period, GRAF can withdraw from the contract in whole or in part.
6. Even if notices of defect or counterclaims have been made, the buyer is only entitled to offset, retention or reduction if the counterclaims have been established as legally valid or are indisputable.
7. In the case of default of payment GRAF retains the right to claim further damages due to default even if this exceeds the default interest specified under 4.
8. Returns made while the contract is still being wound up require GRAF’s prior agreement. Returns for which GRAF is not responsible shall be free of all charges. In the event of a return, GRAF is entitled to charge 25% of the value of the goods, at least 15.00 EUR however, as handling costs. The client reserves the right to prove lower handling costs, GRAF retains the right to prove higher handling costs.
Delivery Period
1. The period stipulated for delivery commences with conclusion of contract but not before the buyer / orderer has forwarded the necessary documents and releases.
2. The term of delivery is deemed to be met if the object of the contract has left GRAF’s premises, or the buyer has been notified of readiness to dispatch, before the date of expiration. If the buyer / orderer exceeds the period of recall, GRAF is entitled, after the fruitless lapse of a two-week extension period, to withdraw from the contract in whole or in part or to claim damages for breach of obligation, for default of payment or in place of payment. The term of delivery specified in the order confirmation assumes that the buyer / orderer will fulfil his contractual obligations. If the buyer / orderer desires additional orders / modifications, the delivery period will be extended accordingly.
3. In the case of force majeure such as insurrection, strike, lock-out or other unforeseeable hindrances outside GRAF’s sphere of influence such as breakdowns or other contingencies caused by a supplier, the period of delivery is extended accordingly. This still applies if the hindrances occurred during an already existing delay. If the hindrance lasts longer than three months, the seller is entitled, after an extension period of at least four weeks, to withdraw from the portion of the contract, which has not yet been fulfilled. 4. In as much as GRAF is responsible for failure to adhere to time limits and due dates which have been agreed as binding or for delayed performance, the buyer is entitled to a recompense of 0.5% for each full week of delay, in total however only a maximum of 5% of the net invoice value of the deliveries and / or performances affected by the contract. Claims in excess of this are excluded unless the cause of the delay is, at least, gross neglect. GRAF is entitled to make part-deliveries and part-performances at all times.
5. GRAF will not undertake any guarantee of procurement.
Reservation of Title
1. Until all present and future claims of GRAF against the buyer / orderer have been settled, irrespective of the legal reasons, including all balance claims from current account and redemption of checks accepted by GRAF, GRAF shall reserve title to the object of contract. If the value of the securities existing for GRAF exceeds the claims against the buyer by more than 20%, GRAF is obliged, at the buyer’s request, to release securities at GRAF’s discretion.
2. The buyer / orderer shall not be authorized to pledge the object of contract or assign it as a security during the period of retention of title. This applies particularly in the case of room security assignments. The buyer / orderer must ensure that §§§ parties receiving the securities receive adequate information on this.
3. As long as retention of title exists, any assignment or other transfer of the object of contract shall require GRAF’s prior written agreement. In the event of non-compliance, claims of the buyer / orderer which have arisen against third parties are deemed to have already been transfered to GRAF from the time of conclusion of contract. The transfer still applies even if the reserve goods have been processed or finished by the buyer / orderer or have been assigned to several customers.
4. If actions of the buyer / orderer are contrary to the conditions of contract, particularly with regard to default of payment, or if bankruptcy proceedings have been instituted or applied for in respect of the buyer’s property, GRAF is entitled to recover goods and the buyer is obliged to hand them over, to the exclusion of any right to retain. In this respect GRAF has a special right of withdrawal. All costs arising from the recovery of goods shall be borne by the buyer / orderer. GRAF is entitled to obtain the best price for the reclaimed object of contract by selling it offhand, without this affecting the buyer’s payment obligation. Proceeds from this sale will be offset against the outstanding claim after deduction of costs incurred by GRAF.
5. It should be noted, however, that assertion of retention of title by GRAF does not constitute a withdrawal from the contract. If this is to happen, it is to be declared separately by GRAF.
6. If the object of contract is shipped abroad, the aforesaid regulation applies in so far as it is admissible according to the law of the area to which the object is delivered. If the law prescribes a special form of argumentation for reservation of title or even registration, the buyer / orderer is obliged to submit the necessary declarations for the observance of such form and registration. If the foreign law allows reservation of title, this is herewith considered as agreed.
Warranty
1. If a delivery or performance is defective, GRAF shall remedy the defect by repair or by delivery of an item free of defect at GRAF’s option. If the second attempt at rectification turns out to be unsuccessful or not economically acceptable, the buyer / orderer has the right to withdraw from the contract or reduce his payment obligation accordingly. Obvious defects must be reported in writing without delay; defects, which are not recognizable or hidden must be reported in writing immediately they are discovered. Graf carries the same liability for repairs and additional deliveries as for the original object of contract. The warranty period begins afresh for new deliveries but is confined to the scope of the new delivery. A warranty is only issued for newly manufactured items. The period of warranty is 24 months from handing over the goods to our contract partner. §§ 377, 378 HGB (commercial code) still apply. Over and above the statutory regulation, GRAF is lengthening the warranty period for a number of underground tanks. This relates to proper handling, assembly and installation in accordance with the installation manual, as well as leakproofness, usability and static safety. The prerequisites of this are competent assembly and operation in accordance with the requirements, namely the currently valid installation and operating instructions and the prevailing standards.
2. GRAF expressly advises that wear and tear does not constitute a defect. The same applies to faults arising from inadequate maintenance.
Liability Clause
GRAF’s liability is limited to damages attributable to gross negligence on the part of GRAF itself or its fulfilment assistants. This does not cover injury to life, body or health of the buyer / orderer. In all cases, GRAF’s liability is limited to three times the value of the deliveries or delivery. In all other cases, GRAF‘s liability may not be invoked, inasmuch as this is permitted by law.
Place of Fulfilment and Place of Jurisdiction
1. Place of fulfilment is Emmendingen. The sole law governing all legal relationships between GRAF and the buyer / orderer is that of the Federal Republic of Germany.
2. The competent court of law with exclusive jurisdiction over all disputes arising directly or indirectly from the contractual relationship, also for bill of exchange and check processes, is Emmendingen for company owners, legal entities of the public law or special authorities under public law. This place of jurisdiction agreement also covers instances where the buyer / orderer does not have a general legal domicile in Germany, has transferred his legal domicile, business residence or his habitual residence from Germany since conclusion of the contract, or where his legal domicile, business residence or habitual residence are unknown at the time of bringing the claim. GRAF nevertheless reserves the right to bring claims against the buyer at another place of jurisdiction, which is valid for the buyer.
Transfer of Rights and Obligations
Transfers of rights and obligations from contracts between the buyer / orderer and GRAF require GRAF’s prior written consent in order to become valid. It thus follows that any claims made by GRAF can only be transferred to third parties with GRAF’s prior written consent.
Regulations for the Sale of Consumer Goods
Recourse claims by companies are recognized within the meaning of § 478 BGB in so far as a defect for which GRAF is held responsible actually exists and in so far as our warranty period has not yet expired. The contract partner is obliged to furnish GRAF with immediate and complete information on any intended claims. At its own option, GRAF has the right to settle claims made by the user or company owner, whether by later fulfilment, reduction or repair, at its own account, disregarding any intermediaries. GRAF’s contract partners shall immediately provide or obtain for GRAF all the documents necessary for claims made by users or dealers to be settled as swiftly as possible. This does not constitute acknowledgement on the part of GRAF.
Ineffectivity of a Condition
In the event of a specification in these conditions or a specification within the scope of other agreements being or becoming ineffective, this shall not affect the validity of remaining specifications or individual agreements. In such cases, each contract partner can demand the agreement of a valid specification, provided this comes as close as possible to the economic and legal objective of the ineffective specification.