All deliveries and services made or delivered by GGM to commercial enterprises (hereinafter individually referred to as a “Customer”) are subject to these General Terms and Conditions and, in supplementation thereof, the Incoterms of the International Chamber of Commerce, in each case as amended from time to time. In the event of any conflicts between these General Terms and Conditions and the Incoterms, these General Terms and Conditions shall prevail. Any general terms and conditions of customer that differ from or are in conflict with the General Terms and Conditions of GGM shall not be part of the contract between the parties, even if an order is accepted by GGM. These General Terms and Conditions also apply to any and all future transactions with Customer.
All offers and prices of GGM are non-binding and subject to change in all respects, unless otherwise stated in the order confirmation. All illustrations and descriptions of machines included in offers, order confirmations, catalogs, brochures or similar publications of GGM are non-binding, and GGM does not guarantee the accuracy of such publications. A valid contract results when the order is confirmed in writing by GGM or, in the alternative, when a written order from Customer is signed by GGM.
II. Prices and Payment Terms
All prices of GGM are exclusive of legal VAT as well as costs of packaging, transportation/shipping and insurance, etc., which will be added to the purchase price, unless a different Incoterm applies according to the order confirmation. Machines shall be promptly unloaded and transferred by Customer. Any additional costs incurred as a result of delayed loading shall be paid by Customer. Any customs duties, fees, taxes and other public charges for deliveries outside the EU are the responsibility of Customer.
Invoices of GGM shall be paid without deduction within the agreed payment period. Payment shall not be deemed effective unless and until GGM can freely dispose of the funds. If payment is not made within the agreed payment period, GGM may charge interest at the legal rate.
Customer shall have no right to withhold payment based upon any counterclaims or to offset any counterclaims, unless such counterclaims are undisputed or have been established by a final and conclusive court judgment.
In case customer will withdraw from and/or cancel the contract, then GGM will keep the transferred down payment up to 20 % as damage compensation. This down payment is not refundable. Furthermore, GGM reserves the right to invoice to the customer other costs, which have directly arisen from the order, should this amount be higher than the received down payment.
III. Delivery Period
The delivery period of the order confirmation relates to the date the machines are made available on location. Compliance with the delivery period is conditional upon Customer’s performance of its contractual obligations, including, without limitation, the agreed payment terms.
In the event of any unforeseen events, such as force majeure, GGM shall have the right to a reasonable extension of the delivery period.
If GGM should not receive machines from its suppliers by the agreed delivery date, GGM may, at its option, extend the delivery period by the corresponding time period, cancel the order, or offer delivery of a different, comparable machine.
IV. Defects, Liability
Customer shall carefully inspect all goods promptly upon receipt and provide GGM with prompt written notice of any apparent defects or delivery of the wrong goods within seven days from receipt of the goods. The same shall apply to any hidden defects after such defects have been discovered, subject to the proviso that written notice of such defects shall be given within 14 days from discovery of the defect. GGM shall be provided with an opportunity to determine reported defects jointly with Customer. After receiving a timely, valid notice of defect, GGM may, at its option, repair the defective goods or deliver replacement goods. GGM shall be afforded the time and opportunity needed for repair or replacement. If a notice of defect from Customer turns out to be invalid, GGM may demand that Customer reimburse GGM for all resulting costs. If repair or replacement fails or is unreasonably delayed, or GGM has the right to refuse repair or replacement under applicable law, Customer may demand a reduction of the purchase price or, if a defect is substantial, rescind the purchase agreement. Any other warranties of GGM are hereby excluded.
GGM assumes no liability for any damages resulting from inappropriate or improper use of delivered goods, defective installation by Customer or any third parties, normal wear and tear, defective or negligent treatment, improper maintenance, or use of inappropriate supplies.
V. Retention of Title
GGM hereby retains title to the goods until all claims of GGM, including claims under any prior, simultaneous or future contracts, have been fully settled. This shall also apply if some or all claims are part of a current account and the balance due on the account is final and has been accepted by Customer.
VI. Limitation of Claims
All claims of Customer against GGM shall be subject to a limitation period of one year from delivery of the goods. The provision in Section IV, no. 2 of these General Terms and Conditions shall apply, mutatis mutandis.
VII. Offer and Contract Obligation
For the sale of new or used machines, etc., that are not in stock, GGM shall inform Customer of the owner and location of the machine for purposes of inspection. Customer agrees to treat all information confidential and not to disclose such information to any third parties. Under no circumstances may Customer negotiate a purchase without GGM. Customer shall be liable to GGM for any damages resulting from non-compliance with these provisions.
In the event that a machine is installed by GGM, Customer shall provide all necessary connections, cable ducts, and utility connections. The place of installation must be cleared of any obstructions and shall be freely accessible.
VIII. Venue and Jurisdiction, Place of Performance, Governing Law
Venue for all legal actions filed by GGM against Customer shall be based on Customer’s place of residence or domicile, unless a complaint names as a defendant a fully qualified merchant or a person who relocated his or her place of residence or place of habitual abode abroad after the date of the contract or whose place of residence or place of habitual abode is unknown at the time the legal action is filed. In such cases venue shall be in a court of competent jurisdiction at the place of GGM’s principal place of business. However, GGM shall also have the right to file legal action in any court of competent jurisdiction at Customer’s principal place of business.
These General Terms and Conditions, and all rights and obligations between GGM and Customer, shall be subject exclusively to the laws of the Federal Republic of Germany, subject to exclusion of all international or supranational (contract) laws, including, without limitation, the UN Convention on Contracts for the International Sale of Goods (CISG).
IX. Collateral Agreements, Written Form, Severability
The parties have made no oral collateral agreements with respect to the subject matter hereof. Any modifications or amendments to this Agreement, including this clause, shall be valid only if in written form. Any representations made by Customer to GGM after the date of the contract (e.g., deadlines, notices of defect, notice of rescission) likewise shall be valid only if in written form.
If any of the foregoing provisions is or becomes invalid, the validity of the remaining provisions and the Agreement as a whole shall remain unaffected thereby. The parties agree that they shall replace any invalid provision with such valid provision as most closely reflects the intent and purpose of the original provision. The foregoing shall apply, mutatis mutandis, if any provisions has been inadvertently omitted from this Agreement.
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